THE COURT: OKAY. WELCOME BACK, LADIES AND GENTLEMEN. RIGHT ON THE BUTTON. THAT’S WHAT WE LIKE AROUND HERE.

ONE OF THE OTHER JOBS I’VE GOT AROUND HERE WHEN I HAVE A JURY PANEL IS NORMALLY TO ALERT THEM TO ANYTHING INTERESTING GOING ON DOWNTOWN IN CASE YOU MIGHT WANT TO DO SOMETHING UNIQUE DURING THE NOON HOUR. AND MY CLERK HAS CHASTISED ME SEVERELY FOR NOT LETTING YOU KNOW THE SEMI-ANNUAL NORDSTROM SALE STARTED TODAY. I FORGOT TO MENTION IT. SO I’LL TRY AND STAY ON TOP OF THESE KINDS OF THINGS.

OKAY. WE RECEIVED A NOTE FROM JUROR 13 THAT CONTAINS A COUPLE THINGS THAT MIGHT BE OF INTEREST TO ALL OF YOU, SO WE ARE GOING TO ADDRESS YOU AS A WHOLE.

THE FIRST WAS “COULD YOU TURN UP THE AIR A LITTLE BIT?” AND I SEE ONE JUROR IS HOT AND ONE SEEMS TO BE COLD. JUROR 14.

JUROR NUMBER 14: NEVER ASK ME ABOUT TEMPERATURE. NO, I’M NOT A GOOD GAUGE.

THE COURT: THIS BUILDING IS FORTY YEARS OLD, AND EVEN THOUGH THE AIR-CONDITIONING SYSTEM, THE COMPRESSORS, ARE NEW, THE DUCTS AND EVERYTHING AREN’T. WE WILL TRY TO KEEP THIS AT AN EVEN KEEL. THE ONLY PROBLEM, JUROR 13, WITH MESSING AROUND WITH IT IS THAT MY EXPERIENCE THEN IT WILL HAVE WIDE MOOD SWINGS AND IT COULD GET VERY COLD OR VERY WARM IN HERE. WE WILL TRY TO GET THE AIR-CONDITIONING ADJUSTED.

THE SECOND THING YOU INQUIRED ABOUT IS “WHAT IF WE HAVE TO GO TO THE BATHROOM BEFORE A NORMAL BREAK?” AND THAT’S A GREAT QUESTION. THAT’S A GREAT QUESTION. WE DON’T USE THE BILL COSBY A ONE OR A TWO. YOU DON’T HAVE TO SAY A THING. ALL YOU HAVE TO DO IS RAISE YOUR HAND AND LET ME KNOW, AND WE WILL TAKE A BREAK. WE DON’T WANT ANYBODY TO BE UNCOMFORTABLE.

THAT SAME APPLIES TO THE LAWYERS AS WELL, INCIDENTALLY. SO JUST KEEP US POSTED.

WHOOPS. WAIT A MINUTE.

(NOTE HANDED TO THE COURT FROM THE CLERK.)
THE COURT: OKAY. WE WILL TALK ABOUT THAT, JUROR 16, AT AN APPROPRIATE BREAK.

ALL RIGHT. MR. DUSEK.

PETER DAMON VAN DAM, RESUMED

DIRECT EXAMINATION, CONTINUED BY MR. DUSEK:

Q: MR. VAN DAM, I THINK WHEN WE BROKE BEFORE LUNCH YOU HAD JUST EXPLAINED THE LOCKING MECHANISM ON THE DOOR LEADING FROM THE GARAGE TO THE HOUSE HAD BEEN REVERSED.

A: YES.

Q: WHERE ARE YOU WHEN YOU CAN LOCK THAT DOOR?

A: IN THE GARAGE.

Q: AND BY LOCKING IT IN THE GARAGE, YOU CAN PREVENT THE PEOPLE FROM INSIDE THE HOUSE TO ENTERING INTO THE GARAGE BECAUSE OF THE LOCK?

A: CORRECT.

Q: NOW, SOMEONE WERE INSIDE THE HOUSE AND STILL WANTED TO GET OUTSIDE, WOULD THEY BE ABLE TO GET OUTSIDE IN ANY OTHER WAY?

A: THEY COULD UNLOCK THE DOOR WITH A KEY.

Q: TO GET INTO THE GARAGE?

A: TO GET INTO THE GARAGE. THEY COULD UNLOCK THE FRONT DOOR AND WALK OUT. IT’S NOT A KEY LOCK. OR THEY CAN GO OUT THE BACK DOOR.

Q: ALL RIGHT.

AND I’M NOT SURE I WAS CLEAR ENOUGH ON THE ALARM SYSTEM IN YOUR HOUSE. DOES THE ALARM — WHAT ACTIVATES THE ALARM?

A: WHEN A DOOR IS OPENED ENOUGH TO THROW A SWITCH OR WINDOW. WITH THE SLIDING GLASS DOOR YOU HAVE TO OPEN THE DOOR OVER AN INCH, AND IT TAKES A MOMENT FOR IT TO TRIGGER AFTER IT GETS OPEN ABOUT AN INCH. AND WHEN THE REGULAR FRONT DOOR OR GARAGE DOOR, SIDE GARAGE DOOR, THE DOOR CAN BE LIKE HALFWAY AJAR AND NOT BE TRIGGERED. BUT WHEN IT’S OPEN ALL THE WAY, IT WILL TRIGGER THE ALARM. AND THEN THE WINDOWS ARE THE SAME WAY, ABOUT AN INCH, HALF-INCH.

Q: WILL THE ALARM BE ACTIVATED IF THE DOOR IS CLOSED OR WINDOW IS CLOSED BUT IT’S NOT LOCKED?

A: NO.

Q: SO THE DOOR ACTUALLY HAS TO BE OPEN TO BE ACTIVATED?

A: RIGHT.
(DISCUSSION OFF THE RECORD BETWEEN MR. DUSEK
AND MR. CLARKE.)
BY MR. DUSEK:

Q: HOW FAR WOULD YOU SAY THE DOORS HAVE TO BE OPENED BEFORE THE ALARM SYSTEM LIGHTS UP?

A: TRIGGERS.

THE SLIDING GLASS DOOR IN THE BACK HAS TO BE OPENED MORE THAN ABOUT AN INCH. WE TESTED THIS AFTER THIS WHOLE THING AND FOUND THAT YOU CAN GET ABOUT NEARLY AN INCH BEFORE IT FINALLY BEEPS AND TURNS THE LIGHT ON. AND THEN THE FRONT DOOR, THE DOOR TO THE GARAGE, AND THE DOOR FROM THE GARAGE TO THE SIDE OF THE HOUSE, YOU CAN GET THEM ABOUT HALFWAY AJAR, WHICH IS THE DOOR HALFWAY OUT OF THE JAMB, AND IT WON’T TRIGGER. BUT ONCE IT GETS, YOU KNOW, BY THE TIME IT’S ALL THE WAY OUT OF THE JAMB, IT WILL TRIGGER.

Q: AND I THINK IN A SEQUENCE OF THE EVENTS THAT EVENING, YOU HAD JUST GONE OUT TO THE GARAGE TO MAKE SURE THE OUTSIDE DOOR WAS LOCKED WHEN WE TOOK THE BREAK FOR LUNCH.

A: YEAH. AND THAT’S WHERE I SAY I LOOKED AT IT. AND I SAW THAT IT WAS IN A LOCKED POSITION, BUT I CAN’T BE SURE THAT THE DOOR WAS LOCKED BECAUSE IT COULD HAVE BEEN SLIGHTLY AJAR OR THE LATCH HAD NOT CAUGHT.

Q: FROM THE GARAGE WHERE DID YOU GO?

A: WENT BACK IN, BACK UPSTAIRS TO BED. YEAH.

Q: DID YOU CHECK ON THE KIDS?

A: I DIDN’T CHECK ON THE KIDS. I WAS TIRED AND I DIDN’T THINK THAT THE DOOR BEING OPEN WAS THAT IMPORTANT AT THE TIME.

Q: WHEN YOU WENT BACK TO BED, DID YOUR WIFE ACKNOWLEDGE YOUR ABSENCE AT ALL?

A: NOT THAT I RECALL.

Q: WHAT’S THE NEXT THING THAT YOU REMEMBER AFTER YOU GOT BACK TO BED?

A: WOKE UP THE NEXT MORNING.

Q: ABOUT WHAT TIME?

A: AROUND 8:00 O’CLOCK.

Q: WHO WAS UP FIRST, YOU OR YOUR WIFE?

A: I WAS UP FIRST. I DON’T REMEMBER WHETHER SHE EVEN WOKE UP WHEN I LEFT THE ROOM THAT MORNING. WHEN I WENT DOWNSTAIRS, DEREK WAS ALREADY UP.

Q: HE’S THE OLDEST BOYA: HE’S OLDEST. HE WAS WATCHING T.V. I DON’T RECALL SPECIFICALLY WHETHER DYLAN WAS UP AT THAT POINT OR NOT. I KIND OF THINK HE WASN’T. I ASKED DEREK ABOUT BREAKFAST AND STARTED TO MAKE HIM POP TARTS. I STARTED TO MAKE MYSELF A WAFFLE, AND AT SOME POINT EITHER — DYLAN WAS THERE. DYLAN CAME DOWN AND HE ASKED FOR POP TARTS ALSO. SO I MADE A SECOND SET OF POP TARTS FOR DYLAN ALSO.

Q: YOUR WIFE WAS WHERE AS FAR AS YOU KNEW?

A: SHE WAS IN BED AS FAR AS I KNEW.

Q: AND WHERE WAS DANIELLE AS FAR AS YOU KNEW?

A: IN BED AS FAR AS I KNEW.

Q: WAS IT UNUSUAL FOR HER TO SLEEP THAT LATE ON A WEEKEND?

A: NO. THE ORDER WE WOKE UP WAS TYPICAL. DEREK IS USUALLY FIRST UP. I’M USUALLY SECOND. AND THEN BRENDA AND DANIELLE SLEEP LATE. AND DANIELLE USUALLY SLEEPS THE LATEST IN THE HOUSE.Q: ONCE YOU GOT THE BREAKFAST GOING, WHAT WAS THE NEXT THING THAT YOU REMEMBER?

A: I THINK I RECALL HEARING BRENDA GET UP UPSTAIRS. I’M NOT SURE. TALKED WITH THE KIDS A WHILE, MAYBE WATCHED T.V. I’M NOT SURE. AND BRENDA CAME DOWN IN A SHORT WHILE.

Q: AT THAT POINT DID YOU KNOW WHETHER OR NOT YOU GUYS WERE SUPPOSED TO BABYSIT ANYBODY THAT MORNING?

A: I DON’T RECALL WHETHER BRENDA HAD TOLD ME BEFORE OR WHEN SHE CAME DOWN, BUT WHEN SHE CAME DOWN, I KNEW. SHE MIGHT HAVE TOLD ME RIGHT THEN.

Q: WHEN SHE GOT DOWNSTAIRS, WHAT HAPPENED?

A: SHE TOLD ME THAT WE HAD TO WATCH RYAN AND CHRISTIE AT 9:00 OR 9:30. THEY WERE COMING OVER. THAT’S THE NEIGHBORS FROM ACROSS THE STREET CHILDREN. THEY WERE GOING OUT SOMEWHERE.
SHE STARTED BREAKFAST, I BELIEVE, GOT EGGS OUT. I DON’T THINK SHE STARTED MAKING EGGS. I DON’T RECALL NOW WHETHER SHE WAS DOING THE DISHES AND I TOOK OUT THE GARBAGE AT THIS POINT OR AFTER WE WENT BACK UPSTAIRS. BUT BRENDA AND I WENT BACK UPSTAIRS FOR A LITTLE WHILE IN OUR ROOM, CAME BACK DOWN. AND MAYBE THAT’S WHEN — I TOOK THE GARBAGE OUT WHILE SHE WAS DOING THE DISHES. I KNOW THAT.

Q: THE GARBAGE FROM WHERE?

A: FROM THE KITCHEN, WHICH IS IN A GARBAGE CAN, IN A BAG IN A CAN NEXT TO THE SINK. TOOK IT OUT TO THE BIN ON THE SIDE OF THE HOUSE, THROUGH THE GARAGE DOOR AND THE SIDE GARAGE DOOR. AND I BELIEVE IT WAS LOCKED AT THAT TIME. BUT AGAIN I WASN’T REALLY PAYING ATTENTION.

Q: DO YOU RECALL WHEN OR IF THE KIDS FROM ACROSS THE STREET CAME OVER?

Q: WHAT HAPPENED WHEN THEY ARRIVED?A: THEY STARTED PLAYING WITH THE BOYS DOWNSTAIRS, AND CHRISTIE, WHO’S DANIELLE’S FRIEND, ASKED IF SHE COULD GET DANIELLE UP. AND BRENDA SAID YES, SHE COULD GO UP TO THE ROOM AND GET HER UP. BUT CHRISTIE WAS PLAYING SOMETHING WITH THE BOYS AND KEPT PLAYING WITH THE BOYS FOR A LITTLE WHILE.

Q: DID SOMEBODY EVENTUALLY GO LOOK FOR DANIELLE?

A: SINCE CHRISTIE KEPT PLAYING WITH THE BOYS, BRENDA SAID I’LL JUST GET HER UP. BRENDA LIKES TO GO UP AND SNUGGLE WITH HER FOR A LITTLE BIT TO WAKE HER UP SLOWLY.

BRENDA WENT UPSTAIRS, AND SHE YELLED DOWN: DAMON, WHERE’S DANIELLE.

Q: WHERE WERE YOU?

A: I WAS DOWNSTAIRS SOMEWHERE. I DON’T RECALL SPECIFICALLY.

Q: HOW CLEAR IS THIS PART?

A: IT GETS VERY — IT GOT FRANTIC QUICK AFTER THIS.

Q: WHEN SHE YELLED DOWN WHAT SHE DID, WHAT WAS THE NEXT THING THAT YOU REMEMBER HAPPENING?

A: I THINK I RAN UPSTAIRS. WE WERE CHECKING EVERYWHERE WE COULD CHECK. WE GOT VERY NERVOUS QUICKLY BECAUSE WE LOOKED UNDER BEDS AND IN OTHER ROOMS WHERE SHE SHOULD HAVE BEEN. I REMEMBER CHECKING UNDER THE STAIRS. I REMEMBER GOING OUT TO THE SIDE OF THE HOUSE, THROUGH THE SIDE DOOR AGAIN, LOOKING IN THE GARAGE, AND THEN GOING OUT THE SIDE DOOR.

I NOTICED THE GATE WAS OPEN AT THAT POINT. AND I THINK AT THAT POINT I WENT OUT TO THE FRONT OF THE STREET AND LOOKED UP AND DOWN THE STREET AND YELLED HER NAME.

Q: LET ME STOP YOU THERE.

YOU MENTIONED GOING OUT THE SIDE AREA.
MR. DUSEK: I’VE HAD MARKED, YOUR HONOR, AS COURT’S EXHIBIT 24 ANOTHER PHOTO DISPLAY BOARD LABELED AT THE TOP “VAN DAM RESIDENCE, SIDE GARAGE DOOR.” IT HAS FIVE PHOTOGRAPHS LABELED A THROUGH E.

Q: THE DOOR THAT’S DEPICTED IN PHOTOGRAPH A, WHAT DOES THAT LEAD INTO?

A: THE OTHER SIDE OF THAT IS THE GARAGE, INTO THE GARAGE.

Q: AND THERE APPEAR TO BE TWO OBJECTS ON THE CAMERAMAN’S SIDE OF THE DOOR. WHAT ARE THOSE?

A: THE BLUE ONE IS A RECYCLE GARBAGE CONTAINER; THE BLACK ONE IS A GARBAGE CONTAINER.

Q: IS THAT WHERE YOU HAD TAKEN THE TRASH THAT DAY?

A: YES. PUT IT IN THE BLACK ONE.

Q: WHEN YOU STARTED LOOKING OUTSIDE FOR HER, YOU MENTIONED A DOOR THAT WAS OPEN.A: THE GATE WAS AJAR. IT’S IN PICTURE D. THIS GATE WAS AJAR. IT WASN’T OPEN THAT FAR, THOUGH; IT WAS PROBABLY ONLY OPEN ABOUT EIGHT INCHES, JUST FAR ENOUGH THAT THE WOOD AT THE TOP HADN’T — WAS APART.

Q: AND YOU’RE REFERRING TO PHOTOGRAPH D ON EXHIBIT —

A: PHOTOGRAPH D.

Q: — ON EXHIBIT 24.

A: YES.

Q: HOW CLOSE IS THAT TO THE DOORWAY THAT LEADS INTO THE GARAGE IN PHOTOGRAPH A?

A: MAYBE FIVE OR SIX FEET.

Q: HOW EASY IS THAT DOOR TO OPEN, THAT GATE?

A: THE GATE IS VERY HARD TO OPEN. THE WOOD SWELLS. THIS TOP PIECE OF WOOD CONTACTS THE OTHER PIECE OF WOOD, AND THEY RUB TOGETHER AS IT CLOSES SO YOU HAVE TO PUSH THE LATCH UP AND AT THE SAME TIME PULL VERY HARD ON THE GATE TO GET THE WOOD TO COME APART.

Q: HOW LONG HAS IT BEEN THAT WAY?

A: SINCE WE MOVED IN.

Q: THE AREA WHERE YOU TOOK THE TRASH OUT THAT DAY, IS THAT DEPICTED IN EITHER THE RECEPTACLES IN PHOTOGRAPH A ON 24?

A: YES. THAT’S THE BLACK RECEPTACLE IN A AND B.

Q: WHEN YOU TOOK THE TRASH OUT THAT DAY, DID YOU NOTICE IF THAT WOODEN GATE WAS OPEN?

A: NO. ONLY TOOK THE TRASH OUT.Q: ONCE YOU NOTICED THE WOODEN GATE WAS OPEN, WHAT DID YOU DO?

A: I’M NOT POSITIVE IF I RAN OUT IN THE STREET AT THAT TIME, BUT I THINK I RAN OUT AND CALLED HER NAME UP AND DOWN THE STREET, LOOKED UP AND DOWN THE STREET. I KNOW WHEN I WENT BACK IN BRENDA WAS ON THE STAIRWAY, HALFWAY UP THE STAIRWAY. AND SHE ASKED IF SHE SHOULD CALL NINE-ONE-ONE. AND I TOLD HER SHE SHOULD.

Q: WHAT WAS HER EMOTIONAL CONDITION?

A: SHE WAS FRANTIC.

Q: WHAT DO YOU MEAN BY THAT? DESCRIBE IT FOR US.

A: SHE WAS VERY UPSET.

Q: WHAT WAS SHE DOING? IF SOMEONE WERE TO LOOK AT HER, WHAT WOULD THEY SEE?

A: SHE WAS PALE. I MEAN WE WERE BOTH TRYING TO THINK ABOUT THE NEXT PLACE TO LOOK AND JUST BOTH RUNNING AROUND, SHAKING AND VERY UPSET.

Q: DO YOU KNOW IF SHE CALLED NINE-ONE-ONE?

A: YEAH. I’M PRETTY SURE. YEAH, I DO KNOW SHE CALLED NINE-ONE-ONE.

Q: WERE YOU THERE WHEN SHE DID IT?

A: SHE DIALED IT WHEN SHE WAS ON THE STAIRS RIGHT AFTER SHE ASKED ME.

Q: WHAT DID YOU DO?

A: AT SOME — I WENT SEARCHING FURTHER. I DON’T KNOW IF I WENT UNDER THE STAIRS THEN. I KNOW I WENT AT SOME POINT TO THE JACUZZI, TO THE STORAGE SHED AROUND THE SIDE, BACK OUT FRONT. AND I GOT IN THE CAR TO DRIVE AROUND THE BLOCK. I KNOW BY THE TIME I CAME AROUND THE BLOCK, —

Q: DID YOU GO AROUND THE BLOCK?

A: YES.

Q: WHAT HAPPENED WHEN YOU GOT AROUND THE BLOCK?

A: BY THE TIME I GOT AROUND THE BLOCK, THERE WAS A POLICE CAR THERE. I’M NOT POSITIVE IF IT PULLED UP BEFORE I PULLED AROUND THE BLOCK OR WAS IT JUST PULLING UP. BUT THE POLICE WERE THERE, SO I STOPPED, PULLED THE CAR BACK IN FRONT OF THE HOUSE, AND STARTED TALKING TO THEM.

Q: WHAT HAPPENED AT THAT POINT?

A: WE TALKED TO THE POLICE ABOUT IT. THE NEIGHBORS CAME OUT. WE WENT TO THE NEIGHBORS’ HOUSE AND ASKED IF THEY HAD SEEN HER.

Q: DID YOU CONTINUE LOOKING THROUGHOUT THE NEIGHBORHOOD?

A: FOR A WHILE UNTIL THE POLICE ASKED TO TALK TO US.

Q: AT SOME POINT IN TIME DID THE POLICE ASK TO LOOK THROUGH THE HOUSE?

A: YES.

Q: HOW QUICKLY DID THAT HAPPEN?

A: I CAN’T — I HAVE NO IDEA OF TIME.

Q: WAS IT THAT MORNING?

A: OH, YES, THAT MORNING.

Q: AT SOME POINT IN TIME DID THEY SECURE THE HOUSE, KEEP YOU GUYS OUT?

A: YES.

Q: ABOUT WHEN WAS THAT?

A: AGAIN IT WAS THAT DAY. IT WAS THAT MORNING. I DON’T KNOW WHEN.

Q: HOW DID YOU KNOW THAT YOU COULD NO LONGER GO INTO THE HOUSE?

A: I DON’T EVEN KNOW. SOMEONE TOLD ME. I DON’T KNOW. THERE WAS A LOT OF NEIGHBORS OUT; THERE WAS A LOT OF POLICE THERE. I WAS IN A — NOT IN A GOOD STATE EMOTIONALLY. MENTALLY.

Q: WHAT’S THE NEXT THING YOU REMEMBER?

A: WE WENT OVER OUR NEIGHBORS’ HOUSE. THE POLICE WERE SEARCHING. WE WERE CALLING EVERYONE WE COULD THINK TO CALL. WE DIDN’T. . .

Q: DURING THE TIME THAT YOU DISCOVERED DANIELLE MISSING, DID YOU USE THE VACUUM CLEANER?

A: NO.

Q: DID YOU VACUUM THE HOUSE?

A: NO.

Q: DID YOU CLEAN OR DESTROY ANY OF THE PHYSICAL EVIDENCE THAT MIGHT BE IN THE HOUSE?

A: NO.

Q: HOW ABOUT YOUR WIFE; DID YOU SEE HER DO ANY OF THAT WHILE YOU WERE THERE?

A: I DON’T REMEMBER SPECIFICALLY SEEING HER. I KNOW WHEN THEY LET US BACK IN I SAW SOME OF THE LADIES IN THE NEIGHBORHOOD CLEANING THE STAIRS. THAT’S WHEN I ASKED THAT THEY CLOSE UP DANIELLE’S ROOM AND NOT CLEAN IT. I DON’T KNOW WHO WAS CLEANING WHAT, THOUGH.

Q: THAT NIGHT, THAT SATURDAY NIGHT, DID YOU SPEND THE NIGHT AT YOUR HOUSE?

A: NO. WE WENT BACK IN THAT NIGHT.

Q: WHERE DID YOU STAY?

A: JULIE’S HOUSE ACROSS THE STREET.

Q: HOW MANY NIGHTS DID YOU SPEND OVER THERE?

A: I DON’T KNOW WHETHER IT WAS ONE OR TWO.

Q: YOU CAN’T REMEMBER?

A: NO. I WAS NOT IN A GOOD MENTAL STATE.

Q: WHAT FAMILY MEMBERS SPENT THE NIGHT WITH THE NEIGHBORS?

A: OF OUR FAMILY?

Q: YES.

A: MY WIFE, I, AND THE TWO BOYS.

Q: DO YOU RECALL THE POINT WHERE YOU AND YOUR FAMILY WERE ALLOWED TO RETURN TO YOUR HOUSE AND REOCCUPY IT?

A: THAT’S WHEN I WENT IN AND THEY WERE CLEANING THE STAIRS. BUT I DON’T KNOW WHAT — I DON’T EVEN KNOW IF IT WAS SUNDAY OR MONDAY.Q: HOW WERE YOU NOTIFIED THAT YOU COULD GO BACK TO THE HOUSE?

A: I THINK THE POLICE TOLD BRENDA, AND SHE TOLD ME. THEY MIGHT HAVE TOLD ME. I DON’T KNOW.

Q: DID YOU HAVE ANY CONVERSATION WITH THE OFFICERS BEFORE YOU RESUMED OCCUPANCY OF THE HOUSE?

A: I DON’T KNOW WHETHER IT WAS I OR BRENDA WHO ASKED. I KNOW WE DISCUSSED IT THAT IF THEY WERE SURE THAT THEY HAD GOTTEN ENOUGH STUFF, THAT WE DIDN’T THINK WE SHOULD GO BACK IN. BUT THEY SAID THEY WERE SURE THAT WE COULD GO BACK IN.

Q: WHEN YOU WENT BACK TO YOUR HOUSE, WHAT WAS GOING ON?

A: THAT’S WHEN THERE WAS LADIES CLEANING THE STAIRS. AND I ASKED THEM TO CLOSE UP BRENDA’S — OR CLOSE UP DANIELLE’S ROOM AND NOT GO IN.

Q: DID THEY STOP?

A: THEY DIDN’T STOP CLEANING THE STAIRS, BUT I WAS TOLD DANIELLE’S ROOM WAS CLOSED. AND SOME TIME AFTER THAT I GOT THE GATE, PUT IT UP.

Q: WHY DID YOU DO THAT?

A: SO NO ONE WOULD STEP FOOT IN THE ROOM.

Q: THE POLICE HAD ALREADY TOLD YOU THAT THEY DIDN’T NEED THE ROOM ANY MORE, DIDN’T THEY?

A: I WAS WORRIED THAT THERE WAS EVIDENCE IN THERE BECAUSE I KNEW SOMETHING BAD HAD HAPPENED.

Q: IN THE PHOTOGRAPHS, ON EXHIBIT 23, THE BARRIER OR BARRICADE THAT YOU PUT UP, IS THAT VISIBLE IN ANY OF THOSE PHOTOGRAPHS?

A: YES. IN PHOTOGRAPHS A, B, AND C, THAT’S THE BARRIER.

Q: WHAT WAS IT THAT YOU PUT UP?

A: IT’S A DOG GATE. AND I THINK THE BOYS MADE THE LITTLE SIGN THAT SAID DO NOT ENTER.

Q: IN FACT, AFTER THE OFFICERS TOLD YOU THAT YOU COULD RESUME OCCUPANCY OF THE HOUSE, DID THEY COME BACK LOOKING FOR MORE STUFF?

A: YES, THEY DID.

Q: DO YOU REMEMBER ABOUT WHEN?

A: IT WAS — MY LIFE WAS A BLUR FOR A LONG TIME AFTER THAT.

Q: DO YOU KNOW WHAT THEY CAME BACK AND GOT, IF ANYTHING?

A: THEY DID A LOT OF STUFF IN DANIELLE’S ROOM. THEY TOOK THE CLOSET DOORS FROM DANIELLE’S ROOM. THEY TOOK THE CLOSET DOORS FROM THE OFFICE. THEY TOOK A PIECE OF WALL. THEY DID CHEMICAL TESTS IN DANIELLE’S ROOM WHERE THEY WOULD BE IN THERE ALL DAY WITH LIGHTS AND CHEMICALS. I DON’T KNOW EXACTLY WHAT IT IS. THEY CAME BACK AND RE-PRINTED — AS A MATTER OF FACT, AT THE BEGINNING YOU WERE ASKED WHEN WE WERE LET BACK IN. I WALKED AROUND THE HOUSE, AND I NOTICED THEY HADN’T PRINTED THE WINDOWS. AND I ASKED THEY COME BACK AND PRINT ALL THE WINDOWS AND ALL THE GLASS AROUND THE HOUSE, WHICH THEY DID LATER THAT DAY. AGAIN I DON’T KNOW IF IT WAS THE SECOND OR THIRD DAY. AND THEN THEY CLEANED THE WINDOWS, AND THEY CAME BACK AGAIN. THEY CAME BACK AGAIN, A FEW DAYS LATER, AND DID THE WINDOWS ALL AGAIN, AFTER THEY HAD CLEANED THEM. I DON’T UNDERSTAND THAT ONE.

Q: ALL RIGHT.

WERE ANY OF THE WALLS DESTROYED?

A: YEAH. ONE OF THE WALLS BY THE ENTRYWAY THEY TOOK A COUPLE CHUNKS OF IT.

Q: TOOK THE DRYWALL ACTUALLY?

A: YEAH. THE DRYWALL AND STUDS.

Q: DID YOU PLACE ANY LIMITATIONS ON WHAT THEY COULD TAKE FROM YOUR HOUSE?

A: NONE AT ALL. WE ENCOURAGED THEM TO TAKE WHATEVER THEY NEEDED.

Q: HOW ABOUT THE ITEMS IN DANIELLE’S ROOM; DID YOU PLACE ANY LIMITATIONS ON WHAT THEY COULD DO OR TAKE FROM THAT ROOM?

A: NONE AT ALL.

Q: DID THEY ASK FOR SAMPLES FROM YOU, YOUR WIFE, AND YOUR KIDS?

A: YES.

Q: DID YOU PROVIDE THEM?

A: YES.

Q: WHY?

A: BECAUSE I WANTED THEM TO GET WHATEVER EVIDENCE THEY NEEDED TO FIND THE PERSON WHO DID IT.

Q: DID THEY TAKE SAMPLES FROM YOUR DOG?

A: YES.

Q: WHAT DID THEY TAKE?

A: I WASN’T THERE, BUT THEY SAID THEY WANTED —

MR. FELDMAN: OBJECTION. SPECULATION. NO FOUNDATION.

THE COURT: SUSTAINED.

YOU NEED NOT ANSWER, SIR.

NEXT QUESTION, PLEASE.

BY MR. DUSEK:

Q: DOES THE DOG HAVE A NAME?

A: LAYLA.

Q: HOW DO YOU SPELL THAT?

A: L-A-Y-L-A.

Q: WAS THERE A TIME BEFORE, SOME TIME BEFORE DANIELLE WAS TAKEN THAT LAYLA STARTED TO BLEED?

A: SOME TIME BEFORE; I DON’T KNOW HOW LONG BEFORE. CAN I LEAD INTO THIS WITH WHY I REMEMBER IT SO WELL?

Q: DO YOU REMEMBER THIS EVENT?

A: I REMEMBER THE EVENT. I GUESS — I PLAY WITH LAYLA IN THE BACKYARD. SHE’LL RUN AROUND THE SWING SET, THEN SHE’LL RUN DOWN THE SIDE OF THE HOUSE. AND I’LL HIDE AROUND THE OPPOSITE CORNER OF THE HOUSE AND JUMP OUT AT HER TO SCARE HER, TO GET HER PUMPED UP. BECAUSE SHE LIKES RUNNING AROUND.
SO I JUMPED OUT WHEN SHE HAD RUN UP THE SIDE OF THE HOUSE. I WAS HIDING AROUND THE CORNER IN THE BACKYARD. AND I JUMPED OUT IN FRONT OF HER. WE DO THIS OFTEN. AND USUALLY SHE’LL GO AROUND ONE SIDE OR THE OTHER OR GO BETWEEN MY LEGS. BUT THIS TIME SHE HIT HER NOSE RIGHT INTO MY SHIN, AND I SUSTAINED A PREVIOUS SOFTBALL INJURY THERE THAT —

Q: CHIN OR SHIN?

A: SHIN. SHIN BONE.
AND MY SHIN HURT A LOT. AND HER NOSE GOT THAT SAME SPOT IN MY SHIN AND HURT ME A LOT. AND SHE STARTED BLEEDING.

Q: ARE YOU ABLE TO ESTIMATE FOR US ABOUT HOW MUCH BEFORE DANIELLE’S DISAPPEARANCE THIS HAPPENED?

A: A WEEK TO TWO WEEKS.

Q: THE DOG STARTED TO BLEED?

A: YEAH. THE DOG BLED FROM THE NOSE FOR A WHILE. WE KEPT HER OUT FOR A WHILE. WHEN WE LET HER IN, SHE BLED ON THE FAMILY ROOM CARPET SOME, SO WE PUT HER OUT AGAIN UNTIL IT STOPPED.

Q: AT SOME POINT AFTER THESE EVENTS, DID YOU REPAINT THE HOUSE?

A: AFTER — RECENTLY IT’S BEEN REPAINTED, YES.

Q: WHY?

A: BECAUSE IT WAS PRETTY MUCH DESTROYED FROM THE FINGERPRINT DUST.

Q: DID YOU DO ANYTHING WITH REGARDS TO THE CARPETING?

A: ALL THE CARPET’S BEEN CHANGED IN THE HOUSE.Q: WHY?

A: IT WAS ALSO DESTROYED BY FINGERPRINT DUST.

MR. DUSEK: I HAVE ONE PHOTOGRAPH HERE THAT’S BEEN MARKED AS COURT’S EXHIBIT 25. IT STATES “VAN DAM RESIDENCE, SIDE YARD” AT THE TOP, WITH THREE PHOTOGRAPHS ON IT, LABELED A, B, AND C.

A: ACTUALLY THIS IS THE CORNER OF THE HOUSE WHERE LAYLA AND I HAD OUR LITTLE CRASH. BUT IN PHOTOGRAPH A THIS IS THE CORNER WHERE THE CONCRETE WALK LEADS UP — AND FURTHER UP HERE IS THE GARBAGE CANS AND THE GATE THAT LEADS OUT TO THE FRONT DRIVE AND THE STREET.

Q: THAT WOULD BE AT THE FAR END OF THE PHOTOGRAPH A?

A: YES.

Q: AND THE PHOTOGRAPHS DOWN IN B AND C, WHAT DO THEY SHOW?

A: THIS IS THE SIDEWALK SHOWN IN A, CLOSEUP OF THE SIDEWALK SHOWN IN A.

Q: THOSE ARE TWO PORTIONS OF THE WALK ALONG THE SIDE OF THE HOUSE?

A: YES.

Q: THERE APPEARS TO BE A LINE, A DARK LINE, RUNNING ALONG KIND OF THE CENTER OF THAT SIDEWALK. DO YOU SEE THAT?

A: ARE YOU TALKING ABOUT THE DIVIDING LINE HERE?

Q: NO. THE LINE THAT LOOKS LIKE A FAINT LINE RUNNING FROM SIDE TO SIDE ON THE SIDEWALK.

A: OKAY.Q: DO YOU SEE THAT?

A: YES. THERE WERE STREAKS THERE.

Q: HOW LONG HAS THAT BEEN THERE?

A: I DON’T KNOW.

Q: GO AHEAD. I’M SORRY.

A: THE DIRT IS TYPICALLY SCATTERED, THE DOG WILL DIG A LITTLE BIT IN THE LITTLE SLOPE HERE. SO THE DIRT WILL BECOME SCATTERED ACROSS THE WALK. AND APPARENTLY IT HAD BEEN — SOMETHING HAD SLID ACROSS IT.

Q: WOULD EITHER OF YOUR BOYS HAVE TO TAKE THE TRASH OUT?

A: YES. ON OCCASION THEY TAKE IT OUT.

Q: DO THEY GO THAT WAY OR DO THEY GO THROUGH THE HOUSE?

A: SOMETIMES ONE, SOMETIMES THE OTHER.

Q: DO YOU KNOW IF THEY ARE ABLE TO CARRY THE TRASH OR IF THEY DRAG IT?

A: IT DEPENDS HOW FULL IT IS. IF THEY HAVE TO DRAG IT, THEY WILL GO THIS WAY. SOMETIMES THEY WILL CARRY IT THIS WAY ALSO.

MR. DUSEK: THANK YOU, SIR.

THE COURT: ALL RIGHT.

CROSS-EXAMINATION.

/ / /
/ / /
/ / /
CROSS-EXAMINATION
BY MR. FELDMAN:

Q: GOOD AFTERNOON, SIR.

BEFORE YOU CAME TO COURT TODAY DID YOU REVIEW ANYTHING TO REFRESH YOUR MEMORY AS TO THE EVENTS?

A: YES. I REVIEWED THE REPORTS DONE ON MY INTERVIEWS WITH THE POLICE, AND I REVIEWED THE FIRST, WHAT WAS IT, PRETRIAL OR WHATEVER WE DID WHEN I SPOKE LAST TIME.

MR. DUSEK: MAY I HAVE A MOMENT, YOUR HONOR?

THE COURT: SURE.

(DISCUSSION OFF THE RECORD BETWEEN MR. DUSEK
AND MR. FELDMAN.)
MR. DUSEK: IF I MAY, YOUR HONOR, JUST HAVE A MOMENT.

(DISCUSSION OFF THE RECORD BETWEEN MR. DUSEK
AND THE WITNESS.)
MR. DUSEK: THANK YOU, YOUR HONOR.

BY MR. FELDMAN:

Q: YOU MENTIONED THAT YOU HAD REVIEWED YOUR I GUESS TESTIMONY. WHAT YOU MEANT TO SAY I THINK WAS YOU’VE PREVIOUSLY TESTIFIED IN THIS CASE. ISN’T THAT RIGHT, SIR?

A: YES.

Q: AND YOU TESTIFIED UNDER OATH, RIGHT?

A: YES.

Q: AND YOU’RE AWARE THAT THERE WAS A TRANSCRIPT OF THAT PROCEEDING PREPARED.

A: YES.

Q: AND YOU REVIEWED THAT TRANSCRIPT.

A: YES.

Q: AND AT THE TIME ON ANOTHER OCCASION — THIS IS NOT THE FIRST TIME YOU’VE TESTIFIED UNDER OATH, CORRECT?

A: CORRECT.

Q: SO WHAT YOU’RE TELLING US IS YOU REVIEWED THE TRANSCRIPT OF YOUR PRIOR TESTIMONY UNDER OATH. RIGHT?

A: YES.

Q: IN ADDITION TO THAT, HAVE YOU MET WITH THE DISTRICT ATTORNEY?

A: WITH PAUL, YES.

Q: I’M SORRY? YOU SAY PAUL?

A: I’M SORRY. JEFF.

Q: MR. DUSEK?

A: YES.

Q: OKAY.

AND WHEN DID YOU MEET WITH MR. DUSEK?

A: MET WITH HIM EARLIER TODAY. MET WITH HIM YESTERDAY.

Q: WHEN DID YOU MEET WITH HIM YESTERDAY, SIR?

A: 5:00 O’CLOCK, SOMEWHERE.

Q: WHO WAS WITH YOU?

A: WHEN I SPOKE TO HIM? JUST ME AND HIM.

Q: YES.

NOBODY ELSE?

A: NO.Q: ALL RIGHT.

SINCE YESTERDAY HAS ANYBODY SPOKEN TO YOU CONCERNING ANY ASPECT OF THESE PROCEEDINGS?

A: NO.

Q: YOU’VE NOT LOOKED AT ANY NEWSPAPERS, SIR?

A: NO.

Q: YOU’VE NOT LOOKED AT ANY TELEVISION, IS THAT RIGHT?

A: THAT’S CORRECT.

Q: YOU’VE NOT LISTENED TO ANY NEWS, IS THAT RIGHT?

A: NO NEWS CONCERNING THIS.

Q: FRIENDS HAVE NOT — YOU HAVE FRIENDS IN THE COURTROOM TODAY, DON’T YOU, SIR?

A: YES.

Q: YOU HAVEN’T TALKED TO ANYBODY WHO WAS IN THE COURTROOM YESTERDAY WHO PASSED ON INFORMATION CONCERNING ANYTHING THAT WAS SAID.A: NO.

Q: HAVE YOU SPOKEN WITH YOUR WIFE CONCERNING ANY ASPECT OF YOUR TESTIMONY TODAY?

A: NO.

Q: YESTERDAY WHEN YOU WERE AT THE DISTRICT ATTORNEY’S OFFICE, DID YOU ALSO — ARE YOU ALSO AWARE AS TO WHETHER OR NOT YOUR WIFE MET WITH THE DISTRICT ATTORNEY?

A: SHE SPOKE WITH HIM, YES.

Q: DID YOU AND YOUR WIFE SPEAK WITH THE DISTRICT ATTORNEY TOGETHER?

A: NOT CONCERNING THIS, NO.Q: IN OTHER WORDS, YES, JUST NOT CONCERNING THE SUBJECT MATTER OF YOUR TESTIMONY, SIR?

A: CORRECT.

Q: AND HOW MUCH TIME WOULD YOU ESTIMATE YOU SPENT WITH YOUR WIFE SPEAKING WITH THE DISTRICT ATTORNEY YESTERDAY?

A: ALL THREE OF US TOGETHER?

Q: YES, SIR.

A: A FEW MINUTES.

Q: WHEN YOU USE THE WORD FEW, WHAT NUMBER COMES TO MIND; WHAT ARE YOU TRYING TO COMMUNICATE? THAT’S ALL I’M ASKING YOU.

A: FIVE MINUTES. APPROXIMATELY.

Q: PARDON ME?

A: APPROXIMATELY.

Q: SIR, WHEN THESE EVENTS HAPPENED, YOU WERE QUESTIONED BY A NUMBER OF DIFFERENT LAW ENFORCEMENT OFFICERS, ISN’T THAT CORRECT?

A: YES.

Q: SPECIFICALLY YOU SPOKE TO A — WELL, DO YOU RECALL THE NAMES OF THE OFFICERS?

A: NO.

Q: DO YOU RECALL SPEAKING TO A UNIFORMED OFFICER FIRST THING?

A: YES.

Q: AND IF I TOLD YOU THAT HIS NAME WAS CLARK, MIGHT THAT REFRESH YOUR RECOLLECTION AS TO HIS NAME, SIR?

A: I STILL COULDN’T BE SURE.

Q: ALL RIGHT.

WHEN YOU SPOKE WITH THE FIRST OFFICER, WAS THERE ANYONE ELSE PRESENT?

A: NO.

Q: WHEN YOU SPOKE WITH THE FIRST OFFICER, YOU GAVE TO THAT FIRST OFFICER THE INFORMATION AS ACCURATELY AS YOU POSSIBLY COULD, ISN’T THAT RIGHT?

A: IT WAS A VERY SHORT VERSION OF WHAT HAPPENED.

Q: ALL RIGHT.

FOLLOWING YOUR VERY SHORT RENDITION OF WHAT HAPPENED, DID YOU HAVE OCCASION TO SPEAK TO ANOTHER OFFICER?

A: YES.

Q: AND DO YOU RECALL THAT THIS WAS AN OFFICER NAMED FLORES?

A: I BELIEVE I RECOGNIZE FLORES’ NAME.

Q: YOU TOLD US THAT YOU HAD REVIEWED THE POLICE REPORTS OF YOUR STATEMENTS PRIOR TO COMING TO COURT. IS THAT RIGHT?

A: YES.

Q: SO YOU WERE AWARE THAT HAVING REVIEWED THOSE DOCUMENTS THAT ON FEBRUARY THE 2ND YOU SPOKE WITH OFFICER FLORES ON THREE SEPARATE OCCASIONS, ISN’T THAT RIGHTA: YES.

Q: AND THEN ON THE 3RD OF FEBRUARY, AT APPROXIMATELY 1:42 IN THE MORNING, YOU SPOKE AGAIN WITH OFFICER FLORES AND ANOTHER OFFICER NAMED THRASHER. DO YOU RECALL THAT, SIR?

A: MY RECOLLECTION FROM READING THE TRANSCRIPTS ALSO WAS THAT THERE WAS ONLY THREE MEETINGS THAT WENT OVER INTO THE MORNING.

Q: SO, SIR, ARE YOU TELLING ME YOU DID NOT SPEAK WITH OFFICER FLORES AT 1:42 IN THE MORNING IN THE COMPANY —

A: I’M SAYING THAT IN MY REVIEW OF THE DOCUMENTS THAT THAT WAS OUR THIRD MEETING. I COULD BE WRONG, BUT THAT’S WHAT I SAW IN THE DOCUMENTS.

Q: AND THEN AFTER YOU SPOKE WITH OFFICER FLORES, BE IT YOUR THIRD OR FOURTH MEETING, DO YOU RECALL SPEAKING WITH AN OFFICER NAMED KRAMER?

A: NO, I DON’T RECALL KRAMER.

Q: ANOTHER FEMALE, A FEMALE NAMED KRAMER, OR A FEMALE AT LEAST, SIR.

A: NOT SPECIFICALLY.Q: AND THEN FOLLOWING YOUR CONVERSATION WITH THIS OTHER PERSON, DO YOU RECALL SPEAKING WITH AN OFFICER NAMED THILL,
T-H-I-L-L?

A: NO.

Q: AND FOLLOWING YOUR COMMUNICATION WITH OFFICER THILL, DO YOU RECALL —

MR. DUSEK: OBJECTION. MISSTATES THE EVIDENCE.

THE COURT: HE DOESN’T RECALL THE SPECIFIC ITEM. REPHRASE THE QUESTION.

SUSTAINED.

BY MR. FELDMAN:

Q: DO YOU RECALL ANY COMMUNICATION SOMEWHERE AROUND 5:00 O’CLOCK IN THE AFTERNOON AT THE EITHER NORTHEASTERN DIVISION OR DOWNTOWN WITH ANOTHER OFFICER NAMED REDMOND?

A: NO.

Q: AND DO YOU RECALL ONCE AGAIN ON FEBRUARY THE 7TH SPEAKING WITH AN OFFICER NAMED THRASHER?

A: I KNOW I SPOKE WITH THRASHER. I DON’T KNOW ABOUT THE 7TH.

Q: THE FIRST TIME THE POLICE TALKED TO YOU, THEY TOLD YOU IT WAS VERY, VERY IMPORTANT FOR YOU TO TELL THEM THE TRUTH, ISN’T THAT RIGHT, SIR?

A: YES.

Q: AND THEY COMMUNICATED TO YOU THEIR BELIEF THAT IT WAS ABSOLUTELY ESSENTIAL FOR THEM TO KNOW THE NAMES OF EVERY PERSON THAT HAD EVER BEEN IN YOUR RESIDENCE, ISN’T THAT TRUE?

A: THAT HAD EVER BEEN IN MY RESIDENCE, NO. THAT’S NOT TRUE. THAT’S A PRETTY LONG LIST.

Q: PARDON ME?

A: EVERY PERSON THAT HAD EVER BEEN IN MY RESIDENCE?

Q: WELL, WE’LL SAY FROM THE MONTH BEFORE OCTOBER, WE’LL SAY FROM SEPTEMBER OF THE YEAR 2001 UNTIL THE DAY OF THE EVENT, THEY ASKED YOU TO TELL THEM THE NAMES OF EVERYONE THAT HAD BEEN IN THE HOUSE, ISN’T THAT TRUE?

A: WHAT INTERVIEW ARE YOU TALKING ABOUT? I’M NOT CLEAR ON THIS.

Q: I’M JUST TRYING TO START YOU CHRONOLOGICALLY, IN WHATEVER SEQUENCE YOU’RE COMFORTABLE WITH. I’M JUST TRYING TO ESTABLISH DIDN’T THE POLICE TELL YOU THAT IT WAS IN PROBABLY THE FIRST INTERVIEW, MAYBE NOT THE ONE WITH CLARK, BUT IN THE NEXT ONE, THAT IT WAS VERY IMPORTANT FOR YOU TO COMMUNICATE TO THEM WHO HAD BEEN IN THE HOUSE.

A: I DON’T RECALL THE POLICE ASKING ME THAT DETAIL UNTIL MUCH LATER.

Q: I’M SORRY? UNTIL MUCH LATER. WHAT DO YOU MEAN BY THAT, SIR?

A: DAYS, A NUMBER OF DAYS.

Q: SO YOU THINK THAT SOME DAYS PASSED BEFORE ANY POLICE OFFICER ASKED YOU TO COMMUNICATE THE NAMES OF EVERYONE WHO HAD BEEN IN YOUR HOUSE, IS THAT RIGHT?

A: THE NAMES OF EVERYONE WHO HAD BEEN IN MY HOUSE OVER THE PERIOD FROM SEPTEMBER?

Q: YES.

A: YES.

Q: ISN’T IT TRUE, SIR, THAT IN YOUR 1:42-IN-THE-MORNING INTERVIEW ON FEBRUARY THE 3RD DETECTIVE JODY THRASHER SPEAKING TO YOU AT THE NORTHEASTERN SUBSTATION SAID, QUOTE, WHAT I NEED IS THE HONEST ANSWERS FROM YOU. OKAY? I NEED TO KNOW EVERYBODY THAT’S BEEN IN THAT HOUSE? DO YOU REMEMBER THAT QUESTION?

A: MY PROBLEM WITH THIS IS YOUR TIME PERIOD. SHE WANTED — WELL, I DON’T HEAR A TIME PERIOD THERE. AND YOU JUST GAVE ME A TIME PERIOD FROM SEPTEMBER OF 2001.

MR. FELDMAN: COUNSEL.

BY MR. FELDMAN:

Q: DO YOU RECALL WHETHER OR NOT YOUR COMMUNICATIONS WERE TAPE-RECORDED?

A: SOME I KNOW WERE TAPE-RECORDED.

Q: DO YOU RECALL WHETHER OR NOT YOUR FIRST COMMUNICATION WITH DETECTIVE THRASHER WAS TAPE-RECORDED OR AT LEAST THE COMMUNICATION ON FEBRUARY THE 3RD, 2002, AT 1:42 IN THE MORNING?

A: NO, I DON’T RECALL.

Q: DO YOU THINK LOOKING AT A TRANSCRIPT OF THE PROCEEDING MIGHT REFRESH YOUR RECOLLECTION, SIR, AS TO WHAT WAS SAID AND WHAT WAS NOT SAID?

A: YES.

MR. FELDMAN: I’VE PROVIDED COUNSEL, YOUR HONOR, WITH A COPY OF A TRANSCRIPT.

MR. DUSEK: WE HAVEN’T SEEN THIS BEFORE, YOUR HONOR.

MR. FELDMAN: THAT’S OKAY. WE JUST GOT THE TAPES LAST NIGHT.

BY MR. FELDMAN:

Q: SIR, —

MR. FELDMAN: YOUR HONOR, —

THE WITNESS: MAY I CLARIFY ALSO THAT I HAVE BEEN GIVEN —

THE COURT: THERE’S NOTHING PENDING, SIR. JUST A MINUTE. WE WILL DEAL WITH IT WHEN IT COMES UP.

MR. FELDMAN: YOUR HONOR, I WAS THINKING PROBABLY IT WOULD BE APPROPRIATE TO HAVE MARKED AS A COURT EXHIBIT THE TRANSCRIPT IF I MAY, PLEASE.

THE COURT: ALL RIGHT. WHAT’S THE NEXT EXHIBIT NUMBER, PEG?

THE CLERK: 26.

THE COURT: 26.

MR. FELDMAN: YOUR HONOR, I WOULD ASK — I HAVE TWO TRANSCRIPTS WHICH I’M LIKELY GOING TO SHOW THE WITNESS, YOUR HONOR.

THE COURT: ALL RIGHT. THEN HOW WILL YOU DESIGNATE THE FIRST ONE, 26?

MR. FELDMAN: 26, YOUR HONOR, IS A TRANSCRIPT OF THE INTERVIEW WITH DAMON VAN DAM CONDUCTED AT 0142 HOURS ON FEBRUARY 3RD, 2002, WITH JODY THRASHER.

THE COURT: ALL RIGHT. THAT WILL BE 26.

MR. FELDMAN: THANK YOU.

(INTERVIEW OF DAMON VAN DAM AT 1:42 A.M., FEBRUARY
3, 2002, MARKED TRIAL EXHIBIT NUMBER 26 FOR
IDENTIFICATION.)
MR. FELDMAN: AND 27, YOUR HONOR, WOULD BE — IT’S JUST A FLIP OF MY HAND THIS WAY, THE INTERVIEW OF MR. VAN DAM CONDUCTED BY OFFICER FLORES ON FEBRUARY 2ND AT 1750 HOURS.

Q: SIR, I’M GIVING YOU TWO TRANSCRIPTS. ONE IS MARKED EXHIBIT 26. ONE IS MARKED EXHIBIT 27. WHAT I’M TRYING TO FOCUS YOU ON AT THE MOMENT IS EXHIBIT 27. AGAIN, DIRECTING YOUR ATTENTION, YOU INDICATED TO ME THAT LOOKING AT THE TRANSCRIPT OF YOUR TAPE-RECORDED INTERVIEW MIGHT REFRESH YOUR RECOLLECTION AS TO THE STATEMENTS THAT WERE MADE TO YOU DURING YOUR INTERVIEW WITH DETECTIVE THRASHER AT 0142 HOURS ON FEBRUARY 3.

THE COURT: I BELIEVE THAT’S 26, COUNSEL.

MR. FELDMAN: I’M SORRY. 26.

THE COURT: ALL RIGHT.

MR. DUSEK: I’M SORRY. I’M CONFUSED. WHICH ONE ARE WE USING?

MR. FELDMAN: I THINK I JUST JUMPED. I’VE GOT 26 2/3. I’M TRYING TO STAY ON THE TRANSCRIPT OF 2/3.

THE COURT: BUT YOU PREFACED YOUR QUESTION BY REFERRING THE WITNESS TO 27, COUNSEL. IT WAS JUST A MISTAKE.

MR. FELDMAN: THANK YOU.

BY MR. FELDMAN:

Q: AND, SIR, SPECIFICALLY DIRECTING YOUR ATTENTION TO PAGE 2, YOU CAN SEE WHERE IT SAYS S THE SECOND TIME AT THE TOP OF THE PAGE. AND THEN S THE THIRD TIME. FIRST I WOULD LIKE YOU TO PLEASE READ THAT TO YOURSELF.

A: (THE WITNESS COMPLIED.)
OKAY.

Q: HAVING REVIEWED EXHIBIT 26, DID THAT NOW REFRESH YOUR RECOLLECTION THAT IN FACT OFFICER FLORES —

MR. DUSEK: OBJECTION. IMPROPER REFRESHMENT, YOUR HONOR.

BY MR. FELDMAN:Q: — STATED TO YOU —

THE COURT: AT THIS POINT IN TIME I BELIEVE THAT’S AN INCORRECT STATEMENT. OVERRULED.

YOU MAY ASK THE QUESTION.

BY MR. FELDMAN:

Q: DOES HAVING REVIEWED THAT TRANSCRIPT REFRESH YOUR RECOLLECTION NOW THAT OFFICER FLORES SAID TO YOU AT 0142 HOURS IN THE PRESENCE OF DETECTIVE THRASHER “WHAT I NEED IS THE HONEST ANSWERS FROM YOU. I NEED TO KNOW EVERYBODY THAT’S BEEN IN THAT HOUSE”? THAT STATEMENT WAS MADE TO YOU, WASN’T IT?

A: YES.

Q: DIRECTING YOUR ATTENTION TO EXHIBIT 27, ALTHOUGH THE SEQUENCE IS INCORRECT WITH REGARD TO THE EXHIBIT NUMBERS, SIR, 27 IS A TRANSCRIPT OF AN INTERVIEW BY THAT SAME OFFICER, OFFICER FLORES, WITH YOU CONDUCTED FEBRUARY 2ND AT 1750, WHICH IS, I THINK, 5:50 P.M. DO YOU RECALL BEING ASKED QUESTIONS CONCERNING THE SPECIFIC EVENTS THAT HAD PRECEDED THE DISAPPEARANCE OF YOUR DAUGHTER?

A: YES.

Q: AND DO YOU RECALL THE OFFICERS TELLING YOU THAT IT WAS ESSENTIAL THAT YOU TELL THEM THE TRUTH?

A: YES.

Q: AND YOU UNDERSTOOD AT THAT TIME THAT IT WAS ESSENTIAL THAT YOU TELL THE TRUTH, THE COMPLETE TRUTH, TO THE POLICE, ISN’T THAT RIGHT?

A: YES.

Q: HOWEVER, IT’S ALSO THE CASE, IS IT NOT, THAT YOU WERE MAKING DECISIONS AS TO WHAT YOU BELIEVED TO BE RELEVANT AS OPPOSED TO WHAT THEY WERE ASKING, ISN’T THAT RIGHT?

A: YES.

Q: AND AS A RESULT OF YOUR DECISIONS, YOU DECIDED WHAT WAS APPROPRIATE FOR YOU TO DISCLOSE AND WHAT WAS NOT APPROPRIATE FOR YOU TO DISCLOSE, ISN’T THAT TRUE?

A: YES.

Q: AND YOU LIED TO THE POLICE, ISN’T THAT TRUE?

A: MOMENTS BEFORE BEING TOLD THE GRAVITY OF THE SITUATION AND HOW IMPORTANT IT WAS, YES, I DID. MOMENTS AFTER THAT I TOLD THE TRUTH.

Q: SIR, YOU FIRST TALKED TO OFFICER CLARK AT 9:40 IN THE MORNING, SIR. YOU DIDN’T TELL OFFICER CLARK ABOUT THE EVENTS THAT OCCURRED THAT EVENING WITH BARBARA EASTON, DID YOU?

MR. DUSEK: OBJECTION. ARGUMENTATIVE AND TESTIFYING.

THE COURT: OVERRULED.

YOU CAN ANSWER THAT YES OR NO.

THE WITNESS: I TOLD OFFICER CLARK A VERY SHORTENED STORY OF WHAT HAPPENED THAT NIGHT. MANY DETAILS WERE LEFT OUT OF WHAT I TOLD THE FIRST OFFICER.

BY MR. FELDMAN:

Q: AMONG THE DETAILS THAT YOU LEFT OUT WERE YOUR MARIJUANA USE THE NIGHT PRECEDING, ISN’T THAT TRUE?

A: YES.

Q: THE FACT THAT BARBARA EASTON HAD GOTTEN IN BED WITH YOU THE NIGHT BEFORE, THAT’S TRUE, ISN’T IT?

A: YES.

Q: THE FACT THAT YOUR WIFE HAD HAD SOME FORM OF COMMUNICATION FROM DAVID WESTERFIELD THE WEDNESDAY PRECEDING OR THURSDAY PRECEDING, ISN’T THAT RIGHT?

A: THAT DOESN’T RELATE AT ALL TO ANYTHING.

Q: WHEN THE OFFICERS WERE TALKING TO YOU, AND SPECIFICALLY WHETHER IT BE CLARK OR THRASHER OR FLORES, THEY SPECIFICALLY TOLD YOU THAT SOMEONE KNEW THE LAYOUT OF YOUR HOUSE, ISN’T THAT CORRECT?

A: I ASSUME SO.

Q: AND THAT THAT SOMEONE, WHOMEVER IT MAY HAVE BEEN, LIKELY KNEW THAT YOU HAD A DOG, ISN’T THAT CORRECT?

A: I BELIEVE SO.

(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.)
BY MR. FELDMAN:

Q: AND THE OFFICERS INDICATED TO YOU THAT IN THEIR VIEW THE DOG WOULD HAVE BEEN FAMILIAR WITH WHOMEVER MIGHT HAVE BEEN IN YOUR HOUSE EARLIER IN THE DAY, ISN’T THAT RIGHT?

MR. DUSEK: OBJECTION. THAT’S HEARSAY.

THE COURT: OVERRULED.

DID THEY INDICATE THAT TO YOU?

MR. DUSEK: IT SHOULD NOT BE OFFERED FOR THE TRUTH, THEN.

THE COURT: IT IS NOT FOR THE TRUTH OF IT, JUST SIMPLY THAT THE STATEMENT WAS MADE.

THE WITNESS: I DON’T RECALL THAT STATEMENT BEING MADE.

BY MR. FELDMAN:

Q: SO LET ME DIRECT YOUR ATTENTION BACK TO EXHIBIT 26. AND LOOK AT, PLEASE, THE FIRST FULL PARAGRAPH ON THE PAGE AND THE LAST THREE SENTENCES UP FROM THE BOTTOM OF THE FIRST FULL PARAGRAPH.

THE COURT: IS THAT PAGE NUMBER 1?

MR. FELDMAN: YES, YOUR HONOR. SORRY.

THE WITNESS: (THE WITNESS COMPLIED.)
BY MR. FELDMAN:

Q: HAVE YOU HAD A CHANCE TO REVIEW THAT, SIR?

A: YES.

Q: IT’S CORRECT, IS IT NOT, THAT YOU WERE TOLD THAT SOMEBODY KNEW EXACTLY THE LAYOUT OF YOUR HOUSE AND THEY KNEW WHERE DANIELLE’S ROOM WAS? THAT STATEMENT WAS MADE TO YOU, WASN’T IT?

A: STEVE FLORES APPARENTLY MADE THAT STATEMENT.

Q: AND STEVE FLORES ALSO SAID THEY KNEW HOW TO GET IN AND OUT OF YOUR HOUSE AND THEY KNEW ABOUT THE DOG, CORRECT?

A: YES.

Q: AND STEVE FLORES SAID THAT THEY KNEW THE DOG WASN’T GOING TO BITE HIM OR BARK OR YOU KNOW WHAT I MEAN.

MR. DUSEK: OBJECTION. THIS IS TESTIFYING TO HEARSAY, YOUR HONOR, FOR IMPROPER PURPOSES.

THE COURT: IT IS. UNLESS THERE’S SOME VALID REASON. SUSTAINED.

BY MR. FELDMAN:

Q: YOU UNDERSTOOD WHEN THE OFFICER WAS COMMUNICATING WITH YOU THAT IT WAS IMPORTANT THAT THEY GET EVERYTHING OUT IN THE OPEN SO THAT THINGS DON’T KEEP COMING UP AND THEN HAVING TO KEEP REINTERVIEWING YOU. CORRECT?

A: CORRECT.

Q: AND BY 1:42 IN THE MORNING ON THE 3RD OF FEBRUARY, —
LET ME BACK UP FOR A MOMENT. YOU FIRST DISCOVERED OR BELIEVED THAT YOUR DAUGHTER WAS MISSING SOMEWHERE 9:30 IN THE MORNING ON THE 2ND, ISN’T THAT RIGHT, SIR?

Q: THE INTERVIEW WITH FLORES THAT’S MEMORIALIZED AS EXHIBIT 26, THAT OCCURS AT 1:42 IN THE MORNING, CORRECT? IT’S AT THE VERY TOP OF THE PAGE, SIR.

A: IT SAYS 1:00 A.M.

Q: KEEP READING INTO THE FIRST SENTENCE WHERE IT SAYS: S, THE TIME IS.

A: OKAY.

Q: SIR?

A: YES. I SEE IT.

Q: THAT WAS THE FIRST TIME, WAS IT NOT, AFTER YOU HAD DENIED YOUR MARIJUANA USE, NEVER ADMITTED TO ANYTHING GOING ON WITH BARBARA EASTON, THAT THE OFFICER SAID I NEED TO KNOW EVERYTHING AND TOLD YOU THAT BARBARA HAD TALKED TO THE OTHER DETECTIVES, CORRECT?

A: COULD YOU REPEAT THAT QUESTION?

Q: YES.

1:42 IN THE MORNING, IN YOUR COMMUNICATION WITH FLORES AND THRASHER, IT WAS AT THAT TIME FOR THE FIRST TIME THAT THE OFFICERS TOLD YOU THEY HAD TALKED WITH BARBARA EASTON AND BASICALLY THE CAT WAS OUT OF THE BAG. TRUE?

A: TRUE.

Q: NOW, YOU TOLD ME JUST I THINK A MOMENT AGO THAT IT WAS ONLY A COUPLE OF MOMENTS’ TIME BETWEEN THE TIME YOU DECIDED IT WAS APPROPRIATE NOT TO TELL THE TRUTH AND THE TIME YOU DECIDED IT WAS APPROPRIATE TO TELL THE TRUTH. DO YOU RECALL THAT?

A: YES.

Q: THIS IS ACTUALLY A FIFTEEN-HOUR PERIOD OF TIME, IS IT NOT?

A: I WAS ASKED AS FAR AS MARIJUANA USE WAS WHAT I WAS REFERRING TO. I WAS NOT ASKED — WELL, I DON’T KNOW WHERE IN THESE INTERVIEWS, BUT WHEN I WAS ASKED, I ANSWERED NO. WHEN I WAS TOLD IT WAS IMPORTANT TO TELL THE TRUTH, I ANSWERED YES. IT HAPPENED THAT FAST.

Q: WELL, LATER ON FEBRUARY THE 3RD, AT ABOUT 1:45 IN THE AFTERNOON, YOU HAD A COMMUNICATION AT THE POLICE STATION WITH A PARTICULAR OFFICER NAMED PAUL REDDEN, DO YOU RECALL THAT?

A: NO.

Q: DO YOU RECALL MR. REDDEN SPECIFICALLY ASKING YOU WHETHER OR NOT YOU HAD USED ANY DRUGS?

A: NO. I DON’T RECALL SPEAKING TO HIM AT ALL.

Q: DO YOU RECALL TELLING THE POLICE, ANY OFFICER, IN RESPONSE TO A DIRECT QUESTION DID YOU USE ANY DRUGS, YOUR ANSWER NO?

A: YES. AS A MATTER OF FACT, THAT’S WHAT I WAS REFERRING TO BEFORE. THEY ASKED ME THE DIRECT QUESTION. I ANSWERED NO. OUT OF NERVOUSNESS. THEY SAID I DON’T CARE ABOUT YOUR — I’M PARAPHRASING — I DON’T CARE ABOUT YOUR DRUG USE; I CARE ABOUT FINDING YOUR DAUGHTER. TELL ME THE TRUTH. AND I SAID YES.

Q: YOU’RE SAYING THEY. BUT I’M TALKING ABOUT AN INTERVIEW THAT OCCURRED WITH JUST BETWEEN YOURSELF AND A SINGLE OFFICER WHOSE NAME IS REDDEN. AND I’M SPECIFICALLY ASKING YOU IF YOU RECALL BEING ASKED THE QUESTION “WERE YOU DRINKING ANYTHING THAT NIGHT,” AND YOUR ANSWERING “I HAD TWO BEERS WITH DINNER. I THINK I HAD ONE MORE PLAYING VIDEO GAMES.” DO YOU RECALL THAT?

A: I DON’T RECALL SPEAKING TO OFFICER REDDEN.

Q: AND SO YOU DO NOT RECALL REDDEN ASKING YOU THE QUESTION DID YOU HAVE ANY DRUGS THAT NIGHT AND YOUR ANSWERING NO AT 3:00 O’CLOCK OR SO IN THE AFTERNOON OF FEBRUARY THE 3RD, 2002?

A: UNLESS IT’S THE SPECIFIC QUESTION THAT WAS FOLLOWED BY I DON’T CARE ABOUT THAT AND MY ANSWERING YES MOMENTS LATER, NO, I DON’T RECALL IT. THAT’S THE ONLY TIME I RECALL BEING ASKED ABOUT DRUGS IS WHEN I FOLLOWED THAT ANSWER WITH AN ANSWER OF YES, I USED THEM MOMENTS LATER.

Q: SO THEN YOU DON’T RECALL THE OFFICERS TELLING YOU THAT IT WAS IMPORTANT, EARLY, BEFORE YOU TALKED TO THE OFFICER REDDEN OR WHOMEVER, YOU DON’T RECALL THE OFFICERS TELLING YOU THAT THEY NEEDED TO KNOW THE NAME OF EVERYBODY THAT HAD BEEN IN THE HOUSE?

A: NO.

Q: BUT YOU UNDERSTOOD THAT ONE OF THE REASONS IT WAS NECESSARY FOR THE OFFICERS TO KNOW WHO HAD BEEN IN THE HOUSE WAS BECAUSE OF THE OBVIOUS BELIEF COMMUNICATED TO YOU THAT THE POLICE BELIEVED SOMEONE WHO MAY HAVE BEEN RESPONSIBLE FOR THE DISAPPEARANCE OF YOUR DAUGHTER WAS FAMILIAR WITH THE INSIDE OF YOUR HOUSE?

MR. DUSEK: THIS IS HEARSAY FROM THE OFFICERS, YOUR HONOR, BEING MISUSED.

THE COURT: OVERRULED.

YOU MAY ANSWER.

THE WITNESS: ASK THE QUESTION AGAIN, PLEASE.

MR. FELDMAN: MAY WE?

THE COURT: BOB.

(THE FOLLOWING WAS READ BY THE REPORTER:

“Q: BUT YOU UNDERSTOOD THAT ONE OF THE REASONS IT WAS NECESSARY FOR THE OFFICERS TO KNOW WHO HAD BEEN IN THE HOUSE WAS BECAUSE OF THE OBVIOUS BELIEF COMMUNICATED TO YOU THAT THE POLICE BELIEVED SOMEONE WHO MAY HAVE BEEN RESPONSIBLE FOR THE DISAPPEARANCE OF YOUR DAUGHTER WAS FAMILIAR WITH THE INSIDE OF YOUR HOUSE?”)
THE COURT: BEFORE THE WITNESS ANSWERS THE QUESTION, LADIES AND GENTLEMEN, I JUST WANT TO REMIND YOU QUESTIONS ARE NOT EVIDENCE. WE HAVE GONE OVER THIS BEFORE. IT’S ONLY THE ANSWERS THAT ARE MEANINGFUL.

YOU MAY ANSWER, MR. VAN DAM.

THE WITNESS: CAN I HAVE IT AGAIN? THAT WAS AN AWFULLY LONG QUESTION.

THE COURT: CERTAINLY.

(THE LAST QUESTION WAS READ BY THE REPORTER.)
THE WITNESS: YES.

BY MR. FELDMAN:

Q: AND IN FACT YOU NEVER MENTIONED BARBARA EASTON AND YOUR ACQUAINTANCE WITH BARBARA EASTON UNTIL THE DETECTIVE SPECIFICALLY TOLD YOU THAT HER JOB AS ONE OF THE DETECTIVES WAS TO FIND OUT WHO WAS IN YOUR HOUSE AND WHO TOOK YOUR DAUGHTER, RIGHT?

A: AS FAR AS I RECALL BARBARA EASTON WAS ON THE LIST OF PEOPLE THAT WERE IN THE HOUSE, ALONG WITH DENISE, RICH, AND — AND I’VE LOST HIS NAME NOW. MY FRUSTRATION. AND KEITH. AS FAR AS I REMEMBER, THOSE NAMES WERE GIVEN TO THE POLICE WAY EARLY ON.

Q: BUT I THINK YOU TOLD MR. DUSEK ON DIRECT THAT YOUR TIME SENSE HAS BEEN AFFECTED BY THE EVENTS. IS THAT RIGHT?

A: YES.

Q: SIR, ON DIRECT EXAMINATION YOU TOLD MR. DUSEK THAT ON FRIDAY NIGHT, FEBRUARY THE 1ST, YOUR WIFE’S TWO FRIENDS SHOWED UP AT THE HOUSE. DO YOU RECALL THAT?

A: YES.

Q: THE TWO FRIENDS THAT YOU REFERRED TO AS YOUR WIFE’S FRIENDS WOULD BE BARBARA EASTON AND DENISE KEMEL, IS THAT RIGHT?

A: YES.

Q: THEY WERE YOUR FRIENDS ALSO, WEREN’T THEY?

A: YES.

Q: IN FACT, THEY WERE YOUR INTIMATE FRIENDS, ISN’T THAT TRUE?

A: YES.

Q: AND THERE HAD BEEN OTHER OCCASIONS PRIOR TO THE 1ST OF FEBRUARY THAT YOU HAD BEEN INTIMATE WITH BARBARA EASTON, ISN’T THAT TRUE?

MR. DUSEK: OBJECTION. VAGUE AS TO INTIMATE. LET’S FIND OUT.

MR. FELDMAN: ALL RIGHT.

THE COURT: YES.

BY MR. FELDMAN:

Q: ALL RIGHT, SIR. YOU — I’M SORRY. SIR, IT’S CORRECT, ISN’T IT, THAT ON AT LEAST THREE SEPARATE OCCASIONS YOU HAD HAD SEXUAL INTERCOURSE WITH BARBARA EASTON PRIOR TO FEBRUARY 1ST?

A: NO.Q: HOW MANY TIMES?

A: ONCE.

Q: WHERE WAS THAT?

A: BARBARA’S HOUSE.

Q: WEREN’T THERE OTHER OCCASIONS WHERE YOU ATTEMPTED TO HAVE INTERCOURSE WITH BARBARA EASTON?

A: THERE WERE OTHER OCCASIONS WHEN I WAS WITH BARBARA EASTON, BUT WE DID NOT ATTEMPT TO HAVE INTERCOURSE.

Q: WITH REGARD TO DENISE KEMEL, HAD YOU HAD INTIMATE RELATIONS WITH DENISE KEMEL?

A: IF BY INTIMATE RELATIONS AGAIN YOU MEAN SEX, YES.

Q: I MEAN SEX.

SO WHEN YOU TOLD MR. DUSEK ON DIRECT EXAMINATION THAT DENISE AND BARBARA WERE YOUR WIFE’S FRIENDS, YOU ALSO MEANT TO INCLUDE THE FACT THAT THEY WERE YOUR VERY CLOSE FRIENDS AS WELL, ISN’T THAT TRUE?

A: YES.

Q: THESE INDIVIDUALS, THESE TWO WOMEN, HAD BEEN ACQUAINTED WITH THE UPSTAIRS OF YOUR RESIDENCE, ISN’T THAT TRUE?

A: EVERYONE IN THE HOUSE THAT NIGHT HAD BEEN IN THE HOUSE, ALL OVER THE HOUSE, ON PRIOR OCCASIONS. IN THE KIDS’ ROOMS, IN THE BACKYARD. THEY ARE ALL FRIENDS.

Q: ISN’T IT THE CASE THAT BARBARA EASTON WAS NOT A CLOSE RELATION OF — LET ME SAY THAT A DIFFERENT WAY.

ISN’T IT TRUE YOUR WIFE COMMUNICATED TO YOU THAT SHE WAS UNCOMFORTABLE WITH BARBARA EASTON’S TALKING TO YOUR DAUGHTER?

MR. DUSEK: OBJECTION. HEARSAY.
THE COURT: AT THIS POINT IN TIME SUSTAINED. AND ALSO THERE’S NO FOUNDATION.

MR. FELDMAN: ALL RIGHT.

BY MR. FELDMAN:

Q: DID YOU HAVE ANY COMMUNICATIONS WITH YOUR WIFE CONCERNING HER COMFORT OR LACK OF COMFORT REGARDING BARBARA EASTON IN YOUR HOUSE ON THE NIGHT OF FEBRUARY 1?

MR. DUSEK: OBJECTION. HEARSAY. IRRELEVANT.

THE COURT: IT APPEARS TO CALL FOR HEARSAY ANSWER. SUSTAINED.

BY MR. FELDMAN:

Q: ON FEBRUARY THE 1ST, WAS THAT — WAS IT UNUSUAL FOR YOUR WIFE TO HAVE GIRLS’ NIGHTS OUT?

MR. DUSEK: OBJECTION. IRRELEVANT.

THE COURT: OVERRULED.

YOU CAN ANSWER THAT.

THE WITNESS: NOT UNUSUAL.

/ / /
BY MR. FELDMAN:

Q: AND WERE YOU AWARE FOR INSTANCE, THAT IN THE WEEK PRECEDING, ON THE 25TH, THERE HAD BEEN A GIRLS’ NIGHT OUT?

A: I BELIEVE THE PREVIOUS FRIDAY NIGHT, IF THAT WAS THE PREVIOUS FRIDAY NIGHT, THEY WENT OUT.

Q: WHEN YOU SAY THEY WENT OUT, I’M SORRY, WHO?

A: THE SAME THREE LADIES.

Q: SO DOES THAT MEAN ON THE 25TH BARBARA AND DENISE CAME TO YOUR HOUSE AND THEN WENT OUT WITH YOUR WIFE TO DAD’S, AS BEST YOU CAN RECOLLECT IT?

A: I KNOW THEY WENT OUT TO DAD’S. I’M NOT CLEAR ON WHETHER THEY CAME OVER. THE DETAILS OF WHO CAME OVER WHERE.

Q: WERE THEY SMOKING MARIJUANA ON THE 25TH, DO YOU REMEMBER?

A: I DON’T EVEN RECALL IF THEY CAME OVER THE HOUSE THAT NIGHT.

Q: DO YOU RECALL YOUR WIFE COMING BACK ON THE 25TH?

A: NOT SPECIFICALLY. I KNOW SHE CAME HOME, BUT I DON’T SPECIFICALLY RECALL.

Q: IN THE WEEK BEFORE, I’LL SAY BETWEEN THE 25TH AND THE 2ND, I’M SORRY, 1ST OF FEBRUARY, DO YOU RECALL ANY DISCUSSIONS BETWEEN YOURSELF AND YOUR WIFE WHERE THE NAME DAVID WESTERFIELD CAME UP?

MR. DUSEK: OBJECTION. HEARSAY.

THE COURT: OVERRULED. THAT CAN BE JUST ANSWERED YES OR NO.

THE WITNESS: YES.

/ / /
BY MR. FELDMAN:

Q: AND DID YOUR WIFE CALL YOU AT WORK ON A PARTICULAR DAY TO COMMUNICATE — I’M NOT ASKING YOU FOR THE DETAIL — DID YOUR WIFE CALL YOU AT WORK DURING THE WEEK TO ADVISE YOU OF SOMETHING CONCERNING DAVID WESTERFIELD?

MR. DUSEK: OBJECTION. IT’S IRRELEVANT UNLESS WE KNOW THE MATTER, AND THAT’S GOING TO BE HEARSAY.

THE COURT: OVERRULED.

YOU MAY ANSWER.

THE WITNESS: DID SHE CALL ME?

MR. FELDMAN: YES.

THE WITNESS: YES.

BY MR. FELDMAN:

Q: AND DID YOU AND YOUR WIFE ENGAGE IN A DISCUSSION CONCERNING DAVID WESTERFIELD DURING THE WEEK?

A: YES.

Q: WHAT DID YOU SAY TO YOUR WIFE DURING THAT COMMUNICATION?

MR. DUSEK: OBJECTION. IT’S HEARSAY. IT’S IRRELEVANT AND WITHOUT KNOWING THE WHOLE THING, WHICH IS HEARSAY.

THE WITNESS: SPECIFICALLY I DON’T RECALL. I MEAN I CAN RELAY THE BASIS OF THE CONVERSATION.

BY MR. FELDMAN:

Q: PLEASE.

A: IS THAT —

MR. DUSEK: THAT’S HEARSAY, YOUR HONOR, FOR BOTH SIDES.

THE COURT: IT INCLUDES THE WRONG SIDE. LET’S BE SPECIFIC, MR. FELDMAN.

SUSTAINED.

BY MR. FELDMAN:

Q: TO THE EXTENT YOU CAN — WELL, DIDN’T YOU TELL YOUR WIFE THAT YOU WERE SURPRISED THAT DAVID WESTERFIELD HAD MENTIONED A PARTY?

A: YES.

Q: AND ISN’T IT TRUE YOUR WIFE NEVER TOLD YOU THAT SHE GAVE DAVID WESTERFIELD —

MR. DUSEK: OBJECTION. HEARSAY —
BY MR. FELDMAN:

Q: — THE TELEPHONE —

MR. DUSEK: — AS TO WHAT SHE SAID.

THE COURT: AS TO WHAT SHE SAID, SUSTAINED. AND THE FORM OF THE QUESTION INDICATES THAT, MR. FELDMAN. REPHRASE.

BY MR. FELDMAN:

Q: DID YOU ASK YOUR WIFE WHETHER OR NOT SHE HAD GIVEN HER TELEPHONE NUMBER TO DAVID WESTERFIELD IN THE WEEK BETWEEN THE 25TH OF JANUARY AND FEBRUARY THE 1ST?

A: I DON’T SPECIFICALLY RECALL ASKING HER THAT, NO.

(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.)
BY MR. FELDMAN:

Q: SIR, LET ME JUST DIRECT YOUR ATTENTION, AND I’LL TRY AND RUN IT CHRONOLOGIC, OKAY, CHRONOLOGICALLY, TO FEBRUARY THE 1ST.

I THINK YOU TOLD US THAT ON DIRECT EXAMINATION YOU HAD A PHONE COMMUNICATION WITH YOUR WIFE SOME TIME AFTER YOU CAME HOME OR AS YOU WERE COMING HOME FROM WORK. IS THAT RIGHT?

A: YOU’RE STARTING FRIDAY NOW I THINK?

Q: I’M TRYING TO GO TO THE 1ST, YES, FRIDAY.

A: BEFORE 6:00 O’CLOCK?

Q: BEFORE YOU CAME HOME, BEFORE THE PIZZA, BEFORE ANY OF THAT. YOU’RE JUST GETTING OFF OF WORK. THAT’S WHERE I’M TRYING TO START YOU.

A: YES.

Q: SO AS YOU GOT OFF OF WORK, YOU TELEPHONED YOUR WIFE TO FIND OUT WHAT THE ARRANGEMENTS WERE FOR DINNER.A: WE SPOKE. I DON’T RECALL WHO TELEPHONED WHO.

Q: ALL RIGHT.

YOU UNDERSTOOD, THOUGH, THAT BEFORE YOU GOT HOME SHE HAD LEFT THE HOUSE TO GO GET PIZZA, IS THAT RIGHT?

A: YES.

Q: AND WHEN YOU CAME HOME, YOU TOLD US ON DIRECT EXAMINATION YOUR WIFE WAS NOT AT HOME. CORRECT?

A: CORRECT.

Q: WHO WAS TAKING CARE OF THE CHILDREN?

A: DEREK WAS IN CHARGE FOR THE FEW MINUTES THAT SHE WAS GONE, BETWEEN WHEN SHE WAS GONE AND I WAS HOME.

Q: HOW MUCH TIME WOULD YOU ESTIMATE ELAPSED BETWEEN THE TIME YOU ARRIVED HOME AND THE TIME BRENDA GOT HOME?

A: NOT LONG. THIRTY SECONDS. A MINUTE. MAYBE TWO MINUTES. PROBABLY NOT MUCH LONGER THAN TWO MINUTES.

Q: ALL RIGHT.

AND THEN THE FAMILY ATE DINNER, IS THAT RIGHT?

A: YES.

Q: AND YOU UNDERSTOOD THAT BARBARA AND DENISE WERE PLANNING TO COME OVER SO THAT BRENDA COULD GO OUT AND HAVE ANOTHER GIRLS’ NIGHT OUT. CORRECT?

A: YES.

Q: WHAT TIME DID THE WOMEN ARRIVE AS BEST YOU CAN RECOLLECT IT, MEANING DENISE AND BARBARA?

A: BEFORE 8:00 O’CLOCK.

Q: WHEN THEY ARRIVED, DO YOU RECALL WHETHER OR NOT IT APPEARED AS THOUGH THEY HAD BEEN DRINKING?

A: I DON’T RECALL.

Q: DO YOU RECALL TELLING THE POLICE THAT YOU THOUGHT THAT IT APPEARED AS THOUGH THEY WERE DRINKING?

A: I DON’T — I DON’T RECALL THAT. I MAY HAVE.

Q: ALL RIGHT.

HOW MUCH TIME ELAPSED AFTER THEY ARRIVED AND THE TIME YOU CAN RECOLLECT THEM BEING IN THE GARAGE?

A: FIVE TO FIFTEEN MINUTES.

Q: IN THAT FIVE TO FIFTEEN MINUTES, DO YOU REMEMBER WHETHER OR NOT BARBARA EASTON HAD ANY FORM OF COMMUNICATION WITH YOUR DAUGHTER DANIELLE?

A: YEAH. I BELIEVE HER AND DENISE WERE BOTH SITTING AT THE KITCHEN TABLE TALKING TO DANIELLE, TALKING TO EACH OTHER AND DANIELLE.

Q: AND I THINK YOU TOLD US ON DIRECT THAT AT THAT POINT YOU THOUGHT YOUR WIFE WAS UPSTAIRS TAKING A SHOWER.

A: I THINK IT WAS A LITTLE EARLIER I HEARD HER TAKING A SHOWER. BUT SHE WAS UPSTAIRS.

Q: OKAY.

SHE HAD NOT COME DOWNSTAIRS YET, IS THAT A FAIR STATEMENT?

A: YES.

Q: WHEN YOUR WIFE CAME DOWNSTAIRS, DID SHE THEN SUGGEST OR ESCORT THE LADIES INTO THE GARAGE?

A: I WAS PLAYING THE VIDEO GAMES. I DON’T KNOW.

Q: OKAY.

SO YOU WERE PAYING ATTENTION TO THE VIDEO GAMES, YOU WERE NOT PAYING ATTENTION TO WHAT THEY WERE DOING, IS THAT A FAIR STATEMENT?

A: CORRECT.

Q: AND THAT WAS AFTER YOU HAD CONSUMED WHAT YOU TOLD US TWO BEERS, RIGHT?

A: YES.

Q: THEN IT’S YOUR RECOLLECTION THE WOMEN WENT INTO THE GARAGE, IS THAT RIGHT?

A: YES.

Q: HOW LONG WERE THEY IN THE GARAGE BEFORE YOU WENT INTO THE GARAGE, IF YOU RECALL?

A: I DON’T RECALL.

Q: AT SOME POINT YOU MADE THE DECISION TO GO INTO THE GARAGE, IS THAT CORRECT?

A: YES. I BELIEVE IT WAS AT A LULL IN THE VIDEO GAME.

Q: YOU THEN WENT INTO THE GARAGE, IS THAT RIGHT?

A: YES.

Q: WHAT DID YOU SEE?

A: THEY WERE OUT THERE. THEY WERE SMOKING A JOINT. I DON’T KNOW IF THEY WERE DRINKING OR NOT. I’M NOT SURE.

Q: WHAT ABOUT YOU; DID YOU HAVE A BEER WHEN YOU WENT OUT THAT TIME?

A: I DON’T THINK SO.

Q: DO YOU RECALL TESTIFYING OR TELLING ANY POLICE THAT YOU PROBABLY DID HAVE A BEER AT THAT TIME?

A: I SAY I DON’T THINK SO BECAUSE I’M PRETTY SURE WHEN I WENT OUT I DIDN’T HAVE ONE. I DON’T RECALL WHETHER I GOT THE THIRD ONE I DRANK THEN OR WHETHER I WENT OUT LATER AND GOT IT WHEN I STARTED THE PIZZA WITH DYLAN AGAIN.

Q: WHEN YOU STARTED WHAT?

A: WHEN I STARTED EATING PIZZA WITH DYLAN AGAIN.

Q: BUT YOU DID SMOKE MARIJUANA WITH THE WOMEN, IS THAT RIGHT?

A: I BELIEVE I DID HAVE ONE OR TWO PUFFS.

Q: AND DID YOU FEEL THE EFFECTS OF THE MARIJUANA?

A: A LITTLE BIT.

Q: AND THEN DID THE LADIES THEN LEAVE?

A: A LITTLE WHILE AFTER THAT. I WENT BACK TO THE VIDEO GAME FOR A WHILE.

Q: SO YOU LEFT THE GARAGE AND THEY STAYED IN THE GARAGE IS WHAT YOU’RE SAYING, IS THAT A FAIR STATEMENT?

A: YES.

Q: ALL RIGHT.

THEN YOU WENT BACK AND PLAYED VIDEO GAMES AND THEN YOU RECALL THAT YOUR WIFE AND THE WOMEN BACK IN THE HOUSE, IS THAT A FAIR STATEMENT?

A: YES.

Q: AND THEN THE WOMEN LEFT, IS THAT RIGHT?

A: YES.

Q: AS BEST YOU CAN RECOLLECT IT, WHAT TIME?

A: AROUND 8:00.

Q: RICH BRADY, YOU HAD KNOWN HIM FOR A WHILE, ISN’T THAT CORRECT?

A: YES.

Q: HE WAS YOUR SUPPLIER OF MARIJUANA, WASN’T HE?

A: YES.

Q: HE WAS THERE LATER THAT NIGHT, WASN’T HE?

A: YES.

Q: YOU TOLD US THAT YOU WERE EATING COOKIES. DO YOU RECALL THAT?

A: YES.

Q: WAS MARIJUANA IN THOSE COOKIES?

A: NO. THEY WERE PACKAGED “CHIPS AHOY” COOKIES.

Q: IS THAT BEFORE OR AFTER THE WOMEN HAD RETURNED?

A: THAT WAS AFTER.

Q: WAS THAT BEFORE OR AFTER YOU WERE IN BED WITH BARBARA EASTON?

A: THAT WAS AFTER.

Q: I THINK YOU TOLD US ON DIRECT THAT APPROXIMATELY ONE FIFTY — BETWEEN 1:54 AND 1:57 IT WAS YOUR RECOLLECTION YOU HEARD — I KNOW YOU CALL IT AN EXCURSION, BUT I THINK YOU SAID THE TRUCK ARRIVED. DO YOU RECALL THAT?

A: YES.

Q: SO YOU RECALL THAT IT WAS A COUPLE OF MINUTES BEFORE 2:00 O’CLOCK IN THE MORNING THAT YOUR WIFE RETURNED. IS THAT CORRECT?

A: YES.

Q: RIGHT BEFORE THEN, SHORTLY BEFORE THEN, THOUGH, SOMETHING HAD HAPPENED WITH THE DOG, IS THAT CORRECT?

A: YES.

Q: WAS THAT RIGHT BEFORE YOUR WIFE ARRIVED, WAS THAT A TIME WHEN YOU RECALL POSSIBLY WAKING UP OR HEARING YOUR DOG WHINING?

A: YES.

Q: MY QUESTION WAS KIND OF AMBIGUOUS. I’M SORRY.

DID THE DOG WAKE YOU, DO YOU REMEMBER?

A: I BELIEVE SO.Q: DO YOU REMEMBER HEARING THE SECURITY BEEPS OR CHIRPS AS YOU CALLED THEM?

A: NO.

Q: DO YOU REMEMBER WHETHER OR NOT THERE WAS A LIGHT FLASHING?

A: NO.

Q: BY YOUR ANSWER DO YOU MEAN TO COMMUNICATE IT WAS NOT FLASHING OR YOU DO NOT REMEMBER WHETHER OR NOT IT WAS FLASHING?

A: I DO NOT REMEMBER SEEING ANY LIGHTS FLASHING.

Q: BUT YOU DID LATER IN THE MORNING, IS THAT RIGHT? 3:30ISH, WHEN YOU GOT BACK UP, DID YOU SEE A LIGHT FLASHING THEN?

A: YES, I DID.

Q: BUT YOU AT ABOUT FIVE TO 2:00, AROUND THE TIME YOUR WIFE CAME HOME, YOU DON’T REMEMBER THERE BEING ANY FLASHING LIGHTS, CORRECT?

A: I DON’T REMEMBER THERE BEING ANY FLASHING LIGHTS.

Q: WAS IT UNUSUAL FOR THE DOG TO BEHAVE IN THE MANNER THAT IT BEHAVED THAT CAUSED IT TO WAKE YOU UP?

A: A BIT UNUSUAL. BUT WHEN HER BED IS NOT IN THE ROOM, SHE TENDS TO BE LIKE THAT. IT’S ONLY BEEN A VERY FEW TIMES, THREE OR FOUR TIMES, THAT HER BED HAS NOT BEEN IN THE ROOM.

(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.)
BY MR. FELDMAN:

Q: WHEN THE WOMEN CAME HOME, WERE YOU SLEEPING?

A: NO.

Q: DID YOU TELL THE POLICE THAT YOU WERE HALF DOZING, HALF NOT DOZING?

A: I WAS — I MAY HAVE SAID THAT TO THE POLICE. I WAS IN A GROGGY STATE, BUT THE T.V. WAS ON, AND I DON’T SLEEP WITH THE T.V. ON, SO I WAS GROGGY BUT AWAKE.

Q: IS IT YOUR VIEW THAT IF — I’M SORRY.
ON FEBRUARY THE 1ST THE DOG WAS ABOUT A YEAR OLD, WASN’T IT?

A: I BELIEVE HER BIRTHDAY IS IN APRIL. SO. . .

Q: DO YOU REMEMBER TELLING ANY LAW ENFORCEMENT OFFICERS THAT YOU HAD A FAIRLY BIG DOG, IF SOMEBODY DIDN’T KNOW HER, LOOKED LIKE SHE WOULD MAKE A LOT OF NOISE? DO YOU REMEMBER THAT?

A: I DON’T SPECIFICALLY REMEMBER TELLING THEM THAT, BUT I WOULDN’T BE SURPRISED IF I DID.

Q: AND HOW BIG WAS THE DOG?

A: MY ESTIMATE IS ABOUT SIXTY POUNDS. SHE WAS PROBABLY A LITTLE SMALLER THEN.

Q: I’M SORRY. YOU JUST INDICATED — LET ME ASK YOU AGAIN. WHEN THE DOG WAS WHIMPERING, DIDN’T YOU THINK THAT WAS ODD?

A: NOT THAT ODD.

Q: DIDN’T YOU TELL OFFICER FLORES THAT AT ABOUT 1:45 IN THE MORNING, WHEN YOU WOKE UP AND THE DOG WAS WHIMPERING, YOU THOUGHT THAT WAS ODD?

A: I MAY HAVE TOLD FLORES THAT, YES.

Q: AND IF YOU HAD TOLD THAT TO FLORES, WOULD IT BE TRUE?

A: YES.

Q: WHEN THE WOMEN CAME IN THE HOUSE, WHAT’S THE NEXT THING YOU RECALL? DID YOU HEAR THE DOOR OPEN?

A: YES.

Q: DID YOU HEAR MEN’S VOICES DOWNSTAIRS?

A: YES.

Q: WERE YOU EXPECTING THERE TO BE MEN THERE THAT NIGHT?

A: NO.

Q: DID YOU INVITE ANY MEN OVER THAT NIGHT?

A: NO.Q: DID YOU DISCUSS WITH BRENDA WHETHER OR NOT IT WOULD BE APPROPRIATE FOR HER TO BRING YOU BACK ANY MEN THAT NIGHT OR WOMEN?

A: CAN YOU ASK THAT QUESTION AGAIN?

Q: YES.

BEFORE YOUR WIFE WENT PARTYING THAT NIGHT, DID YOU DISCUSS WITH HER WHETHER IT WOULD BE APPROPRIATE FOR HER TO BRING BACK, I DON’T KNOW, PEOPLE TO PARTY WITH?

A: BEFORE MY WIFE WENT OUT TO THE CAFE TO DANCE —

Q: YES.

A: — THAT NIGHT, WE DID NOT SPECIFICALLY DISCUSS WHETHER FRIENDS OF OURS THAT DID NOT GO WITH HER WOULD COME BACK OR NOT.

Q: DID YOU DISCUSS WITH HER WHETHER OR NOT FRIENDS OF YOURS WOULD GO TO BED WITH YOU?

A: NO.

Q: ISN’T IT TRUE THAT WHEN YOUR WIFE CAME HOME AND SHE ENTERED WITH BARBARA, BOTH BRENDA AND BARBARA WENT UPSTAIRS?

A: YES.

Q: AND BARBARA JUMPED INTO BED NEXT TO YOU, ISN’T THAT TRUE?

A: YES.

Q: AND AT THAT POINT BRENDA LEFT, DIDN’T SHE?

A: I DON’T KNOW WHETHER IT WAS THAT POINT OR A FEW MINUTES LATER. I THINK SHE MIGHT HAVE USED THE RESTROOM UPSTAIRS, BUT YES.

Q: AND IT WAS DARK IN YOUR ROOM AT THAT POINT, WAS IT?

A: YES.

Q: SO IS IT YOUR TESTIMONY THAT BARBARA CAME UPSTAIRS INTO YOUR BED AND YOUR WIFE LEFT THE ROOM?

A: YES.

Q: AND HOW MUCH TIME ELAPSED BETWEEN THE TIME YOUR WIFE LEFT THE ROOM WHILE YOU WERE IN BED WITH BARBARA AND THE NEXT TIME YOU RECALL SEEING YOUR WIFE THAT EVENING?

A: THREE TO FIVE MINUTES.

Q: AND WHAT WERE YOU AND BARBARA DOING IN THAT THREE-TO-FIVE-MINUTE PERIOD OF TIME?

A: KISSED, SNUGGLED A LITTLE.

Q: WELL, YOU SAY KISS AND SNUGGLED A LITTLE. COULD YOU PLEASE TELL THE JURY WHAT DO YOU MEAN BY SNUGGLE A LITTLE?

A: I ROLLED OVER AND PUT MY ARM AROUND HER, RUBBED HER BACK SOME.

Q: AND WHERE WAS YOUR WIFE?

A: DOWNSTAIRS.

Q: AND BARBARA WAS A WOMAN WITH WHOM YOU HAD HAD INTIMATE RELATIONS PREVIOUS.

A: YES.

MR. DUSEK: OBJECTION. ASKED AND ANSWERED.

THE COURT: OVERRULED. THE ANSWER WAS YES. IT’S DONE.

NEXT QUESTION.

BY MR. FELDMAN:

Q: WHERE WAS DENISE?

A: SHE WAS DOWNSTAIRS.

Q: YOU DON’T RECALL THAT DENISE ALSO CAME UPSTAIRS AND WENT INTO THE BATHROOM WITH BRENDA?

A: NO, I DON’T RECALL THAT.

Q: AT SOME POINT IN TIME BRENDA HAD TO COME BACK UPSTAIRS AND TELL YOU SHE WAS GETTING EMBARRASSED, ISN’T THAT TRUE?

A: I DON’T KNOW IF IT WAS EMBARRASSED, BUT SHE WANTED US TO COME DOWNSTAIRS, YES.

Q: AND SHE — AS A RESULT OF WHAT SHE SAID, YOU THEN GOT OUT OF BED, IS THAT CORRECT?

A: YES.

Q: AND BARBARA WAS THERE, CORRECT?

A: YES.

Q: AND WHEN BRENDA CAME IN, YOU WERE STILL IN THE PROCESS OF HUGGING AND KISSING HER, IS THAT CORRECT?

A: NOT KISSING. ONLY I BELIEVE I KISSED ONCE OR TWICE AND THEN JUST LAID THERE.

Q: AND WHEN YOU GOT OUT OF BED, SIR, HOW WERE YOU DRESSED?

A: UNDERWEAR.

Q: WHAT KIND OF UNDERWEAR?

A: JOCKEYS.

Q: AND DID YOU, WHEN YOU GOT OUT OF BED, WAS BARBARA STILL THERE?

A: YES.

Q: AND DID YOU GET DRESSED?

A: YES.

Q: FROM YOUR UNDERWEAR INTO CLOTHING WHILE BARBARA WAS THERE?

A: PUT CLOTHES OVER MY UNDERWEAR.

Q: AND THEN YOU WENT DOWNSTAIRS, IS THAT RIGHT?

A: YES.

Q: ON ONE OF THE OCCASIONS THAT — WELL, STRIKE THAT.

LAW ENFORCEMENT ASKED YOU TO PROVIDE THEM YOUR BEST OPINION AS TO WHO MIGHT HAVE BEEN RESPONSIBLE FOR THE DISAPPEARANCE OF YOUR DAUGHTER, ISN’T THAT RIGHT?

MR. DUSEK: OBJECTION. SPECULATION. THIRD PARTY.

THE COURT: SUSTAINED.

YOU NEED NOT ANSWER.

/ / /
BY MR. FELDMAN:

Q: IN 2001 YOU HAD A HALLOWEEN PARTY, IS THAT RIGHT?

A: YES.

Q: YOUR HALLOWEEN PARTIES YOU PREVIOUSLY HAVE DESCRIBED AS RISQUE, ISN’T THAT TRUE?

Q: TO CLARIFY TIMING, SIR, WITH REGARD TO DENISE KEMEL, WHEN DID YOU HAVE SEXUAL RELATIONS WITH DENISE KEMEL?

A: OCTOBER, 2000, I BELIEVE.

Q: AND SINCE THEN?

A: NO.

Q: REGARD TO BARBARA EASTON, I THINK YOU TOLD US YOU ONLY HAD SEXUAL RELATIONS WITH HER ON ONE TIME. WAS THAT YOUR TESTIMONY, SIR?

A: YES.

Q: BUT ISN’T IT TRUE THAT ON AT LEAST THREE SEPARATE OCCASIONS EITHER YOU HAD SEX OR YOU ATTEMPTED TO HAVE SEX WITH BARBARA EASTON IN THE PRESENCE OF YOUR WIFE?

A: YES.

Q: WHEN YOU HAD RELATIONS WITH KEMEL, WHO ELSE WAS PRESENT?

MR. DUSEK: OBJECTION. IRRELEVANT.

THE COURT: OVERRULED.

THE WITNESS: MY WIFE AND HER HUSBAND.

(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.)
BY MR. FELDMAN:

Q: WAS THAT AT YOUR HOUSE?

A: YES.

Q: IN YOUR BEDROOM?

A: YES.

Q: OKAY.

AT 2:30 OR THEREABOUTS IN THE MORNING, AFTER THE PEOPLE LEFT, THAT IS, RICH BRADY AND KEITH AND THE WOMEN LEFT, AND YOU DECIDED TO GO TO SLEEP WITH YOUR WIFE, WERE THE LIGHTS TURNED OFF?

A: YES.

Q: AND IS IT A MATTER OF YOUR CUSTOM AND PRACTICE, SIR, THAT WHEN YOU GO TO SLEEP UPSTAIRS THE OVERHEAD LIGHTS ARE TURNED OFF?

A: YES.

Q: AND WITH REGARD TO THE LIGHTS IN YOUR CHILDREN’S ROOM, CHILDREN’S ROOMS, IS IT YOUR CUSTOM AND PRACTICE TO TURN THE LIGHTS OFF IN THEIR ROOMS WHEN THEY GO TO SLEEP?A: EXCEPT FOR THE NIGHTLIGHTS, YES.

Q: OKAY.

AND THE NIGHTLIGHTS ARE LIGHTS WHICH ARE ONLY DESIGNED TO RADIATE A SMALL AMOUNT OF LIGHT, NOT TO ILLUMINATE THE ENTIRE AREA, IS THAT CORRECT?

A: THE ENTIRE AREA BEING?

Q: THE WHOLE ROOM LIKE AN OVERHEAD LIGHT.

A: WELL, AFTER IT’S DARK IN THE ROOM, THEY ILLUMINATE THE WHOLE ROOM.

Q: DO YOU KNOW THE WATTAGE ON THE NIGHTLIGHTS?

A: NO.

Q: ARE THEY THE KIND OF NIGHTLIGHTS YOU JUST PLUG INTO THE WALL AS OPPOSED TO, YOU KNOW, LAMPS THAT YOU MIGHT TURN ON?

A: YES. SMALL INCANDESCENTS.

Q: I’M SORRY?

A: SMALL INCANDESCENTS, LIKE CHRISTMAS TREE LIGHTS, BUT CLEAR.

Q: THANK YOU.

A: PLUG IN THE WALL.

Q: ALL RIGHT. THANK YOU.

WITH REGARD TO YOUR DAUGHTER DANIELLE, DID SHE PLAY HIDE AND SEEK?

A: SHE HAD.

Q: WERE THERE OCCASIONS WHEN YOU BECAME UPSET WITH YOUR DAUGHTER FOR BEING ON THE OTHER SIDE OF THE GATE WITHOUT PERMISSION?

MR. DUSEK: OBJECTION. VAGUE AS TO WHEN.

THE COURT: TRY AND BE SPECIFIC AS TO TIME, COUNSEL. SUSTAINED.

MR. FELDMAN: EXCUSE ME, YOUR HONOR.

BY MR. FELDMAN:

Q: WITHIN THE PREVIOUS WE’LL SAY SIX MONTHS, SIX TO EIGHT MONTHS, WERE THERE OCCASIONS THAT YOU BECAME UPSET WITH DANIELLE FOR GOING OUT AND PLAYING OUTSIDE THE GATE?

A: NO.

MR. FELDMAN: YOUR HONOR, I RECOGNIZE THE TIME, BUT I CAN EXPEDITE THIS PROCESS IF YOU WILL GIVE US A RECESS AT THIS POINT.

THE COURT: OH, THAT’S FINE. I’M COMPLETELY AMENABLE.

MR. FELDMAN: THANK YOU.

THE COURT: LADIES AND GENTLEMEN, PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS.

LET’S SEE. JUROR 16, I WOULD LIKE YOU TO WAIT IMMEDIATELY OUTSIDE THE DOOR SO WHEN WE CLEAR THE COURTROOM WE ARE GOING TO HAVE YOU COME BACK IN SO WE CAN DISCUSS YOUR NOTE.

AND LET’S BE — ALL OF YOU FOLKS BE OUT HERE AT HOW ABOUT 3:15 SO WE CAN DEAL WITH SOME OF THESE OTHER ISSUES. QUARTER AFTER 3:00, PLEASE.

(THE JURY RECESSED AT 2:53 O’CLOCK, P.M.)
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:

THE COURT: OKAY. THE RECORD SHOULD REFLECT THE JURORS AND ALTERNATES HAVE LEFT.
THE NON-MEDIA GALLERY I NEED — OOPS.

TO THOSE OF YOU THAT ARE NON-MEDIA FOLKS — WOULD YOU CLOSE THE DOOR, PLEASE — THAT ARE NON-MEDIA FOLKS SITTING IN THE GALLERY, YOU HAVE BEEN GENERALLY VERY GOOD WITH YOUR POKER FACES. HOWEVER, SOME OF YOU ARE STARTING TO LOSE IT AND BECOME QUITE ANIMATED. IF YOU BECOME ANIMATED, YOU ARE OUT OF HERE. KEEP THOSE POKER FACES, FOLKS, IF YOU WANT TO STAY IN HERE.

THE MEMBERS OF THE PUBLIC, OTHER THAN THE MEDIA, AT THIS TIME WILL CLEAR THE COURTROOM SO I CAN TALK TO THIS JUROR.

[SPECTATORS LEFT THE COURTROOM AT THIS POINT.]
THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT OTHER THAN THE MEDIA THE COURTROOM IS CLEAR.

COUNSEL, I HAVE RECEIVED TWO NOTES FROM JUROR 16. THE FIRST ONE I RECEIVED READS “I KNOW SOMEONE WHO IS SITTING IN THE AUDIENCE. I DO NOT KNOW WHAT THE REASON IS.” THAT’S THE REASON I HAVE HAD HER STEP OUTSIDE.
BUT APPARENTLY IN THE INTERIM SHE’S SENT ANOTHER NOTE THAT SAYS “NOTICED THAT THE PERSON I KNEW IN THE AUDIENCE IS MISSING. THIS PERSON HAS A CHILD AT THE SAME CHILD CARE FACILITY. SHE HAS BEEN TO MY CHILD’S BIRTHDAY PARTIES. I DO NOT WISH MY IDENTITY TO BE KNOWN.”
SO IT APPEARS THAT THE PERSON WAS HERE EARLIER AND IS NOT HERE NOW. SO WE’LL FIND OUT WHAT WE CAN AND SEE WHAT THE PROBLEM IS.

WOULD YOU INVITE 16 IN, PLEASE.

MR. FELDMAN: YOUR HONOR, DID YOU WANT TO EXCUSE THE WITNESS?

THE COURT: OH. YES. MR. VAN DAM, YOU CAN TAKE A BREAK. PLEASE BE OUTSIDE THE DOOR AT 3:15. OKAY. THANK YOU VERY MUCH.

[THE WITNESS EXITED THE COURTROOM AT THIS POINT, AND JUROR NUMBER 16 ENTERED THE COURTROOM.]
THE COURT: OKAY. JUROR 16, I’VE RECEIVED YOUR TWO NOTES. I PROBABLY WOULDN’T HAVE HAD YOU BACK IN IF I HAD NOTE NUMBER TWO BEFORE. BUT IT APPEARS THAT YOU RECOGNIZED SOMEONE THAT WAS IN THE AUDIENCE JUST A — NOT A MEDIA PERSON.

JUROR NUMBER 16: YES. THIS PERSON HAS THEIR CHILD AT THE SAME DAY CARE AS I DO. SHE’S BEEN TO MY CHILD’S BIRTHDAY PARTIES THE LAST TWO YEARS. I JUST SAW HER A WEEK AND A HALF AGO. I SEE HER WHEN I PICK UP MY CHILD AND WHEN I DROP OFF MY CHILD. WE TALKED ABOUT DOING BALLET TOGETHER. I MEAN THAT KIND OF THING.

AND I WAS CONCERNED WHEN — I NOTICED HER RIGHT BEFORE LUNCH; I SAW HER A COUPLE OF BENCHES DOWN. BUT I DIDN’T KNOW WHAT COURTROOM SHE WAS GOING INTO. AND SHE DIDN’T KNOW WHAT ONE I CAME OUT OF THAT I KNEW OF. SO I JUST WALKED BY. WE MADE EYE CONTACT, DIDN’T SAY ANYTHING, AND JUST KEPT GOING. SO I DIDN’T THINK ANYTHING ABOUT IT.

WHEN I CAME BACK FROM LUNCH, I NOTICED HER SITTING UP HERE. AND THAT’S WHEN I THOUGHT, UH-OH, YOU KNOW, I DON’T WANT THAT TO HAPPEN. AND SO THE BAILIFF ASKED ME TO WRITE IT DOWN AND GIVE YOU THE NOTE.

THE COURT: OKAY.

JUROR NUMBER 16: AND THEN I LATER LOOKED OVER. THE REASON WHY I GAVE YOU THE NOTE WAS — IS, YOU KNOW, WOMEN IN DAY CARE, WE TALK ABOUT EVERYTHING. SO THE LAST THING I WANTED WAS FOR HER TO LEAVE THE COURTROOM, GO BACK TO MY, YOU KNOW, TO THE SCHOOL AND SAY, HEY, GUESS WHAT. THIS IS WHERE I AM.

THE COURT: YEAH.

JUROR NUMBER 16: AND THEN SHE LEFT. AND I DIDN’T NOTICE IT UNTIL, YOU KNOW, THE TIME THAT I WROTE ON THERE THAT SHE WAS GONE. I DON’T KNOW WHERE SHE IS NOW.

THE COURT: OKAY. WELL, THE ONLY THING THAT I CAN SEE AS A POTENTIAL PROBLEM IS THAT SHE LETS THE FOLKS AT YOUR DAY CARE PROVIDER KNOW. I MEAN OBVIOUSLY I COULD HAVE MADE AN ORDER HAD I KNOWN ALL OF THIS BEFORE SHE LEFT. I AM MORE CONCERNED WITH PEOPLE SUCH AS IN THE MEDIA AND OTHERS THAT WOULD BECOME AWARE OF WHO YOU ARE AS OPPOSED TO A PARENT OF ANOTHER CHILD.

THIS APPEARS NOT TO BE A WITNESS. IT APPEARS THAT SHE CAME EITHER AS AN INTERESTED BYSTANDER OR SHE HAPPENS TO BE IN THE BUILDING AND DECIDED TO COME IN.
FOR THE TIME BEING I’M GOING TO TAKE NO ACTION. HOWEVER, IF YOU SEE HER COME BACK, AND I’M NOT SURE EXACTLY WHO SHE WAS, BUT IF YOU SEE HER COME BACK, EITHER BRING IT TO THE ATTENTION OF ONE OF MY BAILIFF STAFF OR JUST RAISE YOUR HAND AND LET ME KNOW, AND I’LL IMPOSE AN ORDER ON HER TO ALLEVIATE ANY FEAR YOU MAY HAVE.

JUROR NUMBER 16: OKAY. I’M NOT WORRIED FOR MY SAFETY OR ANYTHING LIKE THAT, BUT I JUST DO — I WANTED YOU TO KNOW AND EVERYONE TO KNOW IT.

THE COURT: I’M VERY CONCERNED THAT SHE DOESN’T DO SOMETHING LIKE GO TO THE MEDIA OR TALK TO SOMEBODY AND DISCLOSE YOUR NAME AND THAT SORT OF THING. SO WE WILL FOLLOW UP ON IT IF SHE COMES BACK. OKAY.